People v. Tatum CA4/2

• Court: California Court of Appeal
• Decided: August 11, 2025
• Docket: E081785
• Status: Unpublished

Opinion

Filed 8/11/25 P. v. Tatum CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E081785

v. (Super.Ct.No. FVA1300235)

KENNETH TATUM, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Daniel W.

Detienne, Judge. Reversed and remanded with directions.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Seth M.

Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

1 Defendant and appellant Kenneth Tatum filed a Penal Code former section

1170.951 petition, which the court denied at the prima facie stage. On appeal, defendant

contends the order must be reversed and the matter remanded because defendant made a

prima facie case for relief and the court erroneously relied on evidence from the

preliminary hearing transcript. We reverse and remand the matter with directions.

I. FACTUAL AND PROCEDURAL BACKGROUND2

On February 3, 2013, an officer heard a broadcast regarding a shooting, which had

occurred at a nearby residence. He pulled over a vehicle, observing it to be in violation

of several traffic infractions. There were several subjects inside.

The officer identified defendant as the front passenger. Another officer identified

three of the four occupants of the vehicle, including defendant, as active members of the

4th Street gang. At the time of the shooting, there was an active gang war between the

4th Street and NAW gangs. The shooting occurred at the residence of a member of

NAW.

1 Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered Penal Code section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code unless otherwise indicated.

2 Our factual recitation is derived from the preliminary hearing transcript, which defendant stipulated would serve as the factual basis for his conviction. (People v. Patton (2025) 17 Cal.5th 549, 568-569, fn. 12 (Patton) [Courts hearing section 1172.6 petitions should not condition “the use of preliminary hearing transcripts on whether a petitioner previously admitted the truth of testimony contained therein or stipulated to the transcript as the factual basis of a plea.”].)

2 An officer interviewed defendant, who told him that NAW members came to

another 4th Street gang member’s girlfriend’s home, where they attempted to vandalize it

with graffiti. He said one of the other 4th Street members in the vehicle retrieved a .22-

caliber revolver and a rifle. Defendant said they drove to the residence, where he exited

the vehicle with the .22-caliber revolver and fired several rounds at the home.

A loaded AR-15 and loaded .22-caliber revolver were retrieved from inside the

vehicle. An officer retrieved expended shell casings from the scene of the shooting,

which could have been fired from the AR-15. The casings of the ammunition loaded in

the AR-15 were the same make as the expended casings found at the residence.

On September 10, 2015, plaintiff and respondent, the People, charged defendant

by first amended felony complaint with attempted willful, deliberate, and premediated

murder (§§ 664, 187, subd. (a), count 1); shooting at an inhabited dwelling (§ 246, count

2); possession of a firearm by a felon (§ 29800, subd. (a)(1), count 3); and street terrorism

(§ 186.22, subd. (a), count 4). The People additionally alleged defendant had personally

and intentionally discharged a handgun (§ 12022.53, subd. (c)) and rifle (§ 12022.53,

subds. (c) & (e)(1)) in his commission of the count 1 and 2 offenses and had committed

the count 1 through 3 offenses for the benefit of a criminal street gang (§ 186.22,

subd. (b)(1)(A)). The People also alleged that defendant had suffered two prior strike

(§§ 1170.12, subds. (a)-(d) & 667, subd. (b)) and two prior serious felony convictions

(§ 667, subd. (a)(1)).

3 On February 16, 2016, pursuant to a plea agreement, defendant pled guilty to

attempted murder and street terrorism. Defendant also admitted that he had personally

discharged a firearm (§ 12022.5, subd. (c)) in his commission of the attempted murder

and that he had suffered a prior strike conviction. The parties stipulated that the

preliminary hearing transcript would provide the factual basis for the plea.

The court dismissed the remaining counts and allegations upon the People’s

motion. As provided by the plea agreement, the court sentenced defendant to 30 years in

prison.

On April 4, 2023, defendant filed a form petition for resentencing pursuant to

former section 1170.95. On June 5, 2023, the People filed opposition to defendant’s

petition requesting the court take judicial notice of the preliminary hearing transcript.

The People contended defendant could not make a prima facie showing for relief because

the preliminary hearing transcript reflected that he “was an active shooter . . . and was

directly liable for the [a]ttempt[ed] [m]urder charges.”

At a hearing on June 9, 2023, counsel for defendant argued he had made a prima

facie showing for relief and that the court should issue an order to show cause and set the

matter for an evidentiary hearing. The People responded that defendant was an actual

shooter in the matter, which would “knock him out of [a] prima facie [showing], because

he’s directly involved in the attempt[ed] murder itself.” The People noted that a review

of the preliminary hearing transcript bolstered such a conclusion. The People asked the

4 court to review the preliminary hearing transcript. The court set the matter for a future

hearing.

On June 30, 2023, the People again urged the court to read the preliminary hearing

transcript in determining whether defendant had made a prima facie case for relief. The

court noted that it needed to determine whether defendant had stipulated to the

preliminary hearing as the factual basis for the plea. The court continued the hearing so

that it could review the preliminary hearing transcript.

At the hearing on July 21, 2023, the parties disputed whether it was proper for the

court to consider the preliminary hearing transcript. The court determined that it was

proper for it to consider the preliminary hearing transcript; the court found from its

examination of the transcript that “defendant was convicted as the actual perpetrator of an

attempted murder.” Thus, as an actual shooter, the court ruled that defendant had failed

to establish a prima facie showing of relief; the court denied the petition.

II. DISCUSSION

Defendant contends the order must be reversed and the matter remanded for

issuance of an order to show cause because defendant set forth a prima facie case and the

court erred in relying on the preliminary hearing transcript.3 The People concede that

3 The California Supreme Court decided Patton, supra, 17 Cal.5th 549 after briefing in this matter. In Patton, the court determined that a court may “rely on unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations,” in a section 1172.6 petition at the prima facie stage. (Id. at p. 564.) Thus, Patton adversely determined defendant’s latter contention on appeal.

5 defendant set forth a prima facie case, but maintain the court’s reliance on the

preliminary hearing transcript was proper. We agree with the People.

“Senate Bill [No.] 1437 ‘amend[ed] the felony murder rule and the natural and

probable consequences doctrine, as it relates to murder, to ensure that murder liability is

not imposed on a person who is not the actual killer, did not act with the intent to kill, or

was not a major participant in the underlying felony who acted with reckless indifference

to human life.’ [Citation.]” (People v. Curiel (2023) 15 Cal.5th 433, 448 (Curiel).)

“Senate Bill [No.] 775 [partially] amended section 1172.6, subdivision (a) to expand

eligibility for resentencing to persons convicted of ‘attempted murder under the natural

and probable consequences doctrine.’” (People v. Medrano (2024) 98 Cal.App.5th 1254,

1261.)

“Under section 1172.6, ‘A person convicted of . . . attempted murder under the

natural and probable consequences doctrine, . . . may file a petition with the court that

sentenced the petitioner to have the petitioner’s . . . attempted murder . . . conviction

vacated and to be resentenced on any remaining counts . . . .’ [Citation.]” (Curiel, supra,

15 Cal.5th at pp. 449-450.)

“‘[T]he process begins with the filing of a petition containing a declaration that all

requirements for eligibility are met [citation], including that “[t]he petitioner could not

presently be convicted of . . . attempted murder because of changes to [Penal Code]

Section 188 or 189 made effective January 1, 2019,” the effective date of Senate Bill

[No.] 1437 [citation].’ [Citation.] ‘When the trial court receives a petition containing the

6 necessary declaration and other required information, the court must evaluate the petition

“to determine whether the petitioner has made a prima facie case for relief.” [Citations.]

If the petition and record in the case establish conclusively that the defendant is ineligible

for relief, the trial court may dismiss the petition. [Citations.] If, instead, the defendant

has made a prima facie showing of entitlement to relief, “the court shall issue an order to

show cause.” [Citation.]’ [Citation.]” (Curiel, supra, 15 Cal.5th at p. 450.)

“‘The 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.’ [Citation.] ‘Like the analogous prima facie inquiry in habeas

corpus proceedings, “‘the court takes petitioner’s factual allegations as true and makes a

preliminary assessment regarding whether the petitioner would be entitled to relief if his

or her factual allegations were proved. If so, the court must issue an order to show

cause.’”’ [Citation.]” (Curiel, supra, 15 Cal.5th at p. 460.)

“‘“[A] court should not reject the petitioner’s factual allegations on credibility

grounds without first conducting an evidentiary hearing.” [Citation.] “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.’”’ [Citation.] Consequently, ‘[i]f the petition and record in the

case establish conclusively that the defendant is ineligible for relief, the trial court may

dismiss the petition.’ [Citation.]” (Curiel, supra, 15 Cal.5th at p. 460.)

7 “In reviewing any 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.’” (People v. Lewis (2021) 11 Cal.5th 952, 972.) “[T]he ‘prima

facie bar [is] intentionally and correctly set very low.’” (Ibid.)

“‘[T]he parties can, and should, use the record of conviction to aid the trial court

in reliably assessing whether a petitioner has made a prima facie case for relief . . . .’

[Citation.]” (Curiel, supra, 15 Cal.5th at p. 464) “[T]here is no dispute that the record of

conviction the parties may consult at the prima facie stage includes a preliminary hearing

transcript preceding a guilty plea. [Citation.]” (Patton, supra, 17 Cal.8th at p. 568.)

A denial of a section 1172.6 petition at the prima facie “‘“stage is appropriate only

if the record of conviction demonstrates that ‘the petitioner is ineligible for relief as a

matter of law.’ [Citations.] This is a purely legal conclusion, which we review de

novo.”’ [Citation.]” (People v. Lopez (2022) 78 Cal.App.5th 1, 14.)

“Cases such as the one before us . . . concern whether undisputed facts from a

record of conviction following a guilty plea can address whether petitioner’s conviction

was under a now-invalid theory.” (Patton, supra, 17 Cal.5th at p. 565, fn. 8.) “Where

facts from the record of conviction are undisputed, accepting them over contrary legal

allegations that are merely conclusory is not ‘factfinding involving the weighing of

evidence or the exercise of discretion.’ [Citations.]” (Id. at pp. 565-566.)

8 “[S]hould a trial court encounter a material fact dispute, the court may not resolve

that dispute at the prima facie stage and should instead grant petitioner an evidentiary

hearing, assuming relief is not otherwise foreclosed.” (Patton, supra, 17 Cal.5th at

p. 567.) “A dispute regarding the basis of a conviction might arise if, for instance, a

petitioner points to specific facts that identify someone else as the direct perpetrator.”

(Ibid.; id. at p. 569 [Where facts derived from the defendant’s preliminary hearing

transcript were “premised on him being the sole shooter[,]” his “conclusory checkbox

allegations alone could not create a factual dispute about whether he played a

meaningfully different role in the attempted murder.”].)

Where the charging documents generically charged the defendant with attempted

murder, the defendant pled guilty to attempted murder without admitting any specific

intent, and the law at that time permitted the defendant to be convicted under the natural

and probable consequences doctrine, the defendant has made a prima facie showing of

relief under section 1172.6. (People v. Estrada (2024) 101 Cal.App.5th 328, 338

(Estrada) [Where the defendant’s plea to attempted murder did not admit any malice or

specific theory of guilt, “his generic plea [did] not make him ineligible for relief at the

prima facie stage as a matter of law[,]” even though he admitted a personal use of a

firearm enhancement.]; cf. People v. Ramos (2024) 103 Cal.App.5th 460, 465 [Petition

properly denied where the defendant admitted he had aided and abetted the attempted

murder with the specific intent to kill].)

9 Here, as the parties agree, like in Estrada, defendant “did not admit to a specific

theory of guilt.” (Estrada, supra, 101 Cal.App.5th at p. 338.) He “did not plead to any

particular type of malice when pleading to attempted murder.” (Ibid.) Defendant pled

only “to the generic charge of attempted murder without the ‘willful, deliberate, and

premeditated’ allegation. He did not admit he harbored an intent to kill.” (Ibid.) “Thus,

the prosecution could have proceeded under any theory of liability, including a natural

and probable consequences theory.” (Ibid.)

“Likewise, [defendant’s] bare admission of the enhancement[] for personal use of

a” firearm does “not establish that he acted with the intent to kill or refute that he was

convicted on a theory of imputed malice.” (Estrada, supra, 101 Cal.App.5th at p. 338.)

Defendant’s admission to the use of a firearm enhancement did not require that he admit

any specific intent, i.e., defendant was only required to admit that he had a general intent

to use the firearm but not for any specific purpose. (People v. Wardell (2008) 162

Cal.App.4th 1484, 1494) Thus, defendant’s admissions do not establish as a matter of

law that he is ineligible for resentencing under section 1172.6.

10 III. DISPOSITION

The order denying defendant’s petition is reversed. The matter is remanded with

directions to issue an order to show cause under section 1172.6, subdivision (c), and to

hold a hearing under section 1172.6, subdivision (d)(1). We express no opinion on

whether defendant would be entitled to relief following the hearing.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J.

We concur:

MILLER J.

FIELDS J.