People v. Hawthorn

Opinion

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D085679

Plaintiff and Respondent, v. (Super. Ct. No. SCD272282)

ABIGAIL JASPERILLA HAWTHORN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed. Abigail Jasperilla Hawthorn, in pro. per., Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Matthew Mulford and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent. Abigail Jasperilla Hawthorn, formerly known as Anthony Brewer, pled guilty to two counts of attempted murder (Pen. Code, §§ 664, 187(a); counts 1 & 2) and multiple other offenses. 1 Consistent with the plea agreement, the court sentenced Hawthorn to a total prison term of 20 years. Years later, Hawthorn filed a Penal Code section 1172.6 petition for resentencing on her attempted murder convictions. The trial court issued an order to show cause and set the matter for an evidentiary hearing. Relying on People v. Rodriguez (2024) 103 Cal.App.5th 451 (Rodriguez), the trial court treated Hawthorn’s guilty plea as issue preclusive and thus limited the scope of the section 1172.6 evidentiary hearing to whether she acted alone. The court then denied the petition for resentencing after finding beyond a reasonable doubt that Hawthorn “at the time of these crimes was acting alone, making it fall outside any changes” to the homicide laws. Appointed appellate counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel found no arguable issues for reversal on appeal and asking us to review the record for error. An appeal from the denial of a petition for postconviction relief under section 1172.6, however, is subject to the procedure set in People v. Delgadillo (2022) 14 Cal.5th 216, 232 (Delgadillo), which does not compel our independent review of the entire record as Wende does. Counsel’s brief does not mention Delgadillo or its different procedure, and consequently, neither did our notice to Hawthorn offering her the opportunity to file her own brief. But for our purposes, it makes no difference. Hawthorn submitted a supplemental brief, which obligates us to evaluate her arguments, and we exercise our discretion to conduct an independent review of the record. (Delgadillo, at p. 232.) Following our review of the record, we requested supplemental briefing about whether the trial court erred in narrowing the scope of the 1 Appellant’s preferred name and pronouns were used in the trial court. We do the same. 2 section 1172.6 evidentiary hearing based on Rodriguez and, if so, whether that error was prejudicial. We conclude, contrary to Rodriguez, that a guilty plea is not issue preclusive in a section 1172.6 evidentiary hearing. As a result, the trial court erred in limiting the scope of the evidentiary hearing and restricting some cross-examination on this basis. But because Hawthorn has not met her burden of showing the error was prejudicial, we affirm. I. A. The testimony at the evidentiary hearing established the attempted murder charges arose from the following facts. On the weekend of June 4, 2017, Hawthorn called Jane Doe’s father to tell him she had kidnapped Jane and planned to take her to Mexico. Then on June 4, Hawthorn drove to the father’s house with Jane against her will. Despite Jane’s and her father’s attempts, Hawthorn would not let her out of the car. When Hawthorn “threatened to kill” Jane, T.L. approached the car and tried to get Hawthorn to release Jane by grabbing Hawthorn around the neck. At this point, T.L. was “hanging halfway through” the driver’s side window. Hawthorn then unbuckled Jane’s seatbelt and stepped on the gas. Although T.L. was still partway through the window, he and Jane said Hawthorn controlled the car. The car went “flying down the street,” hit a sign and a median, crashed into another car, and flipped. During the time Jane was in the car and T.L. was hanging halfway through the driver’s side window, T.L. recalled Hawthorn saying she was “going to kill us all.”

3 In 2018, Hawthorn pled guilty to the two counts of attempted murder and other charges. As part of her plea, she admitted that she “[u]nlawfully attempted to murder” the two victims. B. In recent years, the Legislature altered our state’s homicide laws “to more equitably sentence offenders in accordance with their involvement in homicides.” (Stats. 2018, ch. 1015, § 1(b).) It created a procedure, currently codified in section 1172.6, that allows those convicted under now-invalid theories of homicide to seek retroactive relief under the amended law. (Stats. 2018, ch. 1015, § 4.) The Legislature later expanded this resentencing eligibility to those convicted of attempted murder under the natural and probable consequences doctrine. (Stats. 2021, ch. 551, § 1(a).) If a petitioner seeking resentencing under section 1172.6 states a prima facie case for relief, the court must issue an order to show cause and hold an evidentiary hearing. (§ 1172.6, subds. (c), (d)(1).) At the hearing, the prosecution bears the burden to prove, beyond a reasonable doubt, that the petitioner “is guilty of . . . attempted murder” under the amended law. (Id., subd. (d)(3).) As relevant here, the prosecution and the petitioner “may also offer new or additional evidence to meet their respective burdens.” (Ibid.) “If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.” (Ibid.) C. After Hawthorn petitioned for resentencing on her attempted murder convictions, the trial court received briefing, issued an order to show cause, and set an evidentiary hearing.

4 Given Hawthorn’s guilty plea, the trial court limited the scope of the evidentiary hearing to the “narrow issue” of “whether or not [Hawthorn] acted alone.” Finding Rodriguez “on point,” the court declined to open the hearing to “relitigation of anything beyond the elements of that particular issue.” As a result, during the evidentiary hearing, the court sustained objections to various lines of questioning by defense counsel—including about the location of Hawthorn’s hands when the car accelerated and whether the passenger seat victim was pregnant at the time of the crash—after deeming them irrelevant “given the narrow scope of the hearing.” When issuing its ruling, the court reiterated how it found Rodriguez “guiding here” in that it “need not consider anything outside of . . . whether or not [Hawthorn] was acting alone.” Based on the evidence presented, the court found beyond a reasonable doubt that Hawthorn acted alone, making her convictions for attempted murder “fall outside any changes” to the homicide laws. Accordingly, the court denied Hawthorn’s resentencing petition. D. Hawthorn’s counsel filed a Wende brief setting forth a statement of the case and facts, urging no grounds for reversal, and asking us to independently review the record for error. In evaluating the potential merits of this appeal, counsel identified two issues: (1) Whether the court violated Hawthorn’s Fifth, Sixth, and Fourteenth Amendment rights “by limiting Hawthorn’s cross examination to the narrow issue of whether Hawthorn was the sole participant in the crime”; and 5 (2) Whether the prosecution “proved beyond a reasonable doubt that Hawthorn was guilty of attempted murder under a valid theory.” In her brief, Hawthorn identified 11 issues, most of which go to the narrowed scope of the evidentiary hearing. II. A. Hawthorn argues the trial court erred in limiting the scope of the section 1172.6 evidentiary hearing because issue preclusion “may not be premised on a judgment based on a guilty plea.” (Capitalization omitted.) The People respond that the language in Hawthorn’s plea “established her intent to kill,” so the court properly “focused the evidentiary hearing on the issue of whether [Hawthorn] acted alone.” We conclude a guilty plea is not issue preclusive at a section 1172.6 evidentiary hearing, so the court should not have limited the hearing on that basis. The issue preclusive effect of Hawthorn’s guilty plea, if any, presents a question of law we review independently. (People v. Lopez-Barraza (2025) 110 Cal.App.5th 1227, 1240.) The trial court narrowed the scope of the section 1172.6 evidentiary hearing based on Rodriguez, so we start our analysis there. As here, the defendant in Rodriguez pled guilty to attempted murder before later seeking resentencing under section 1172.6 and advancing to the evidentiary hearing stage. (Rodriguez, supra, 103 Cal.App.5th at p. 455.) Rodriguez noted how a “guilty plea is a judicial admission” that admits “ ‘every element of the crime and is the equivalent of a conviction.’ ” (Rodriguez, supra, 103 Cal.App.5th at p. 458, quoting People v. Ward (1967) 66 Cal.2d 571, 574.)

6 Although a guilty plea constitutes an admission (People v. Chadd (1981) 28 Cal.3d 739, 748), Rodriguez took the consequence of a guilty plea further by declaring it issue preclusive at a section 1172.6 evidentiary hearing. Rodriguez concluded the guilty plea “precluded the trial court from making factual findings regarding [the defendant’s] conduct or credibility determinations regarding [the defendant’s] intent.” (Rodriguez, supra, 103 Cal.App.5th at p. 459.) It thus deemed “[a]ny other evidence contradicting [the defendant’s] admission by plea . . . irrelevant.” (Id. at p. 458.) In support, Rodriguez quoted our Supreme Court on how “ ‘[f]actual findings should be given preclusive effect.’ ” (Id. at p. 459, quoting People v. Curiel (2023) 15 Cal.5th 433, 470 (Curiel).) Yet Curiel did not apply issue preclusion to a guilty plea. In Curiel, our Supreme Court addressed the prima facie stage of a section 1172.6 petition and noted how “the jury’s factual findings should be given preclusive effect.” (Curiel, supra, 15 Cal.5th at p. 470, italics added.) There, an issue had been actually litigated—as required for issue preclusion—because the defendant “dispute[d] the issue by pleading not guilty, and the dispute was submitted to the jury for decision.” (Id. at pp. 452-453.) Curiel did not consider if issue preclusion would extend to a guilty plea. “As cases are not authority for propositions not considered” (People v. Brown (2012) 54 Cal.4th 314, 330 (Brown)), Curiel thus offers Rodriguez no support. Likewise, the case Rodriguez cited to conclude an “[a]ppellant cannot use a section 1172.6 resentencing hearing to relitigate facts already determined, whether by plea, admission, or verdict” said nothing about guilty pleas. (Rodriguez, supra, 103 Cal.App.5th at p. 458, citing People v. Farfan (2021) 71 Cal.App.5th 942, 947 (Farfan).) Farfan explained how filing a section 1172.6 petition “does not afford the petitioner a new opportunity to 7 raise claims of trial error or attack the sufficiency of the evidence supporting the jury’s findings,” as the “ ‘purpose of section [1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.’ ” (Farfan, at p. 947, italics added.) Like Curiel, Farfan considered the denial of a resentencing petition at the prima facie stage premised on jury findings—not the potential issue preclusive effect of a guilty plea at a section 1172.6 evidentiary hearing. (Ibid.) Consequently, we are not persuaded by Rodriguez’s reliance on Farfan. (See Brown, supra, 54 Cal.4th at p. 330.) In our view, Rodriguez’s conclusion about the issue preclusive effect of a guilty plea at a section 1172.6 evidentiary hearing is weak. As we explain, we find the contrary position better supported. We have previously held that “collateral estoppel”—another term for issue preclusion—“may not be premised on a judgment of conviction based on a plea of guilty.” (People v. Camp (1970) 10 Cal.App.3d 651, 654.) Another division within our district has agreed that “a judgment based on a guilty plea is not entitled to [issue preclusive] effect.” (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1528.) Our Supreme Court has explained why a guilty plea is admissible but not issue preclusive. It observed how “[i]t would not serve the policy underlying [issue preclusion] . . . to make such a plea conclusive.” (Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601, 605 (Teitelbaum).) “When a plea of guilty has been entered in the prior action, no issues have been ‘drawn into controversy’ by a ‘full presentation’ of the case.” (Ibid.) Unlike a jury finding based on the evidence presented, a guilty plea “may reflect only a compromise or a belief that [the consequence of the plea]

8 is more advantageous than litigation.” (Ibid.) The Legislature recognized the different potential motivations for pleading guilty when it expanded section 1172.6 resentencing eligibility to cover manslaughter “out of concern that some defendants may have pled guilty to voluntary manslaughter before 2019 to avoid being convicted of a charged murder under one of the theories eliminated or narrowed by Senate Bill No. 1437 in 2019.” (People v. Gaillard (2024) 99 Cal.App.5th 1206, 1213, fn. 4, citing Assem. Com. on Public Safety, Analysis of Sen. Bill No. 775 (2021-2022 Reg. Sess.) as amended July 6, 2021, p. 7 [“a petitioner may have pled guilty or no contest to voluntary manslaughter in order to forego the risk of being convicted of murder or attempted murder under one of these subsequently abrogated theories of liability”].) Whatever Hawthorn’s motivation, her guilty plea left the attempted murders unlitigated. (See Teitelbaum, supra, 58 Cal.2d at p. 605.) As a result, the plea fails to fulfill a “threshold” requirement for issue preclusion: that the “issue must have been actually litigated.” (People v. Strong (2022) 13 Cal.5th 698, 716.) Accordingly, we part ways with Rodriguez by concluding that a guilty plea is not issue preclusive at a section 1172.6 evidentiary hearing. The People argue Hawthorn’s guilty plea to attempted murder “established the intent issue.” Because her guilty plea “necessarily admitted intent to kill,” the People contend “additional evidence offered to negate that admitted element was immaterial.” They say this is so “not because issue preclusion applied,” but rather “because section 1172.6 does not authorize a wholesale retrial of otherwise valid convictions” unaffected by the amended homicide laws. But what the People describe is issue preclusion in practice if not by name.

9 A section 1172.6 petition “puts at issue all elements of the offense under a valid theory.” (Curiel, supra, 15 Cal.5th at p. 462.) At the evidentiary hearing, the prosecution must prove, beyond a reasonable doubt, that the petitioner “is guilty of . . . attempted murder” under the amended law. (§ 1172.6, subd. (d)(3).) By allowing both “the prosecutor and the petitioner” to offer evidence “to meet their respective burdens” (ibid., italics added), the statute expressly contemplates the existence of factual issues on which the petitioner bears a burden, such as the burden of raising a reasonable doubt on facts negating the elements of the charged crime. (See People v. Tewksbury (1976) 15 Cal.3d 953, 963-964.) Here, however, by giving Hawthorn’s guilty plea preclusive effect, the trial court relieved the prosecution of its burden—while at the same time precluding Hawthorn from raising reasonable doubt—as to all elements of attempted murder. For the reasons discussed above, this was error, although we recognize Rodriguez bound the trial court at the time of the hearing. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The People claim any error was harmless, however, based on the evidence presented at the hearing. Because this proceeding arose under a statutory right, we apply the state law harmless error standard. (People v. Vance (2023) 94 Cal.App.5th 706, 716-717.) We therefore assess whether it is reasonably probable Hawthorn would have obtained a more favorable outcome absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) We conclude it is not. The prosecution bore the burden to show Hawthorn personally had the specific intent to kill and committed “a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) Although the trial court indicated it would limit the scope of the 10 hearing, it did not strictly adhere to its ruling, instead giving the parties leeway to elicit evidence related to Hawthorn’s intent. Jane and T.L. both testified Hawthorn threatened to kill Jane, and T.L. claimed Hawthorn said she was going to kill them all. Hawthorn also unbuckled Jane’s seatbelt and stepped on the gas while T.L. remained hanging halfway out the window. As she accelerated, both Jane and T.L. confirmed Hawthorn was in control of the car. This evidence supports a conclusion beyond a reasonable doubt that Hawthorn personally intended to kill and was solely in control of her car before crashing it into the other car. Hawthorn contends we cannot find the error harmless on this record because the court prohibited her from rebutting evidence that she was in control of the car and acted with the requisite intent. But Hawthorn has not persuaded us it is reasonably probable her proposed additional lines of inquiry would have led the court to find in her favor. For instance, Hawthorn argues she was not allowed to ask Jane whether Hawthorn told her she would not kill Jane because Jane was carrying Hawthorn’s baby. But defense counsel was permitted to ask, “[she] wouldn’t kill you because you were carrying [her] baby; is that correct?” Without objection, Jane responded, “I don’t know.” Likewise, Hawthorn argues her attorney was not allowed to question the investigator about statements Hawthorn made to him in the hospital, but she does not explain why this evidence was improperly excluded as hearsay. Hawthorn also claims the court denied her the opportunity to ask witnesses about her mental health diagnoses and their impact on her actions and mental state. But she cites only one instance when she attempted to ask Jane’s father if he knew whether Hawthorn suffered from “autism or any other psychological disorders.” She does not propose to offer professional or 11 lay testimony showing Hawthorn had a mental disorder or how that could undermine the evidence showing she formed the requisite intent. Thus, we are not convinced Jane’s father’s knowledge as to whether Hawthorn had a mental disorder was reasonably likely to lead to a different outcome. Finally, Hawthorn contends the court prevented her from (1) exploring evidence that witnesses told law enforcement T.L. attempted to wrest control of the steering wheel from Hawthorn and (2) asking an officer whether he investigated T.L.’s involvement in the crash. But such evidence would not undercut the evidence of Hawthorn’s intent and acts in first threatening to kill Jane and then them all, unbuckling Jane, and hitting the gas while T.L. was still hanging out of the car. Hawthorn otherwise objects in her supplemental brief to several purported discrepancies in the testimony. For example, she argues that because Jane’s father’s description of how far T.L. had pulled himself into the car differs from T.L.’s, T.L.’s upper body could have blocked Hawthorn’s access to the steering wheel and gas pedal. She also maintains the evidence about what, if anything, Hawthorn said is unsettled because (1) T.L.’s recollection changed and (2) Jane did not recall Hawthorn saying anything. But these purported discrepancies are unrelated to Hawthorn’s counsel’s inability to inquire into these areas. This was a close case. But in a section 1172.6 proceeding, the appellant must show prejudice. (Vance, 94 Cal.App.5th at p. 717.) Hawthorn has not met her burden here. Accordingly, we conclude the court’s error was harmless. B. Hawthorn submitted her own brief in which she identifies 11 issues. One is not related to her eligibility for relief under section 1172.6, so it falls 12 outside the scope of this appeal. Her remaining concerns are addressed above, except that Hawthorn asserts four reasons she believes her counsel was constitutionally ineffective. Given the bases for these claims, our determination that Hawthorn failed to establish prejudice under section 1172.6 also leads us to conclude she failed to establish the prejudice required to prevail on her ineffective assistance of counsel claims under Strickland v. Washington (1984) 466 U.S. 668, 687. (See In re Tellez (2024) 17 Cal.5th 77, 88.) We have reviewed the entire record. We have not discovered any other arguable issues for reversal on appeal aside from what we have already discussed. Competent counsel has represented Hawthorn on this appeal. III. We affirm.

CASTILLO, J.

WE CONCUR:

DO, Acting P. J.

RUBIN, J.