PC 1172.6 Motion: Beware of Plea Colloquy Admissions

In 1983, the Los Angeles County District Attorney’s Office filed an information, after the preliminary hearing, charging James Harris Fisher with the first degree murder of one person, the second degree murder of a second person, the attempted murder of a third person and burglary.  The information contained special allegations that he committed the murder of more than one person and that the murders were committed while he was engaged in a burglary.  The information also alleged that as to each count that Mr. Fisher personally used a firearm.

The charges arose after Mr. Fisher entered an apartment on West 94th Street in Los Angeles and once inside, shot three people, killing two and injuring a third.

About five months later, Mr. Fisher pleaded guilty to first degree murder, second degree murder and attempted murder.  He admitted the personal firearm use enhancements in each count.  The burglary charge and the multiple-murder special allegation was dismissed pursuant to the plea bargain.

During the taking of the plea, the prosecutor stated, addressing Mr. Fisher: “Let me tell you basically what the charges are in this case.  On March 31, 1983, its is alleged, you entered an apartment at 910 ½ West 94th Street, and that during that evening, events took place where you eventually shot and killed Richard Harrison, a gentleman named in Count 1, and that you shot and killed a lady by the name of Dabney in Count II, and that you shot and injured a lady by the name of Deborah Thomas, the lady in Count III.” 

The prosecutor then asked, “You understand the nature of the charges against you, sir?”

Mr. Fisher answered, “Yes.”

The prosecutor then asked, “Is that a little summary of the facts that I just gave what basically happened that night?”

Mr. Fisher answered, “Yes, sir.”

The defense attorney for Mr. Fisher then stated that the defendant would stipulate to the preliminary hearing transcript as a factual basis for the plea.

The judge then sentenced Mr. Fisher to 25 years to life for the first degree murder, plus two years for the firearm enhancement; 15 years to life, plus two years, to run concurrent with the 25 years, plus seven years for the attempted murder and two years the firearm enhancement to run concurrently to the 25 years to life, plus two years.

On February 1, 2021, Mr. Fisher filed a petition for resentencing under Penal Code § 1172.6.

About four months later, the trial court judge (Shelly Torrealba) held a hearing on the motion and stated that she intended to deny the petition because it appeared that Mr. Fisher was the actual shooter and therefore, was ineligible for relief.  The judge then prepared a written order and summarily denied the motion, citing to, among other things, the sentencing transcript quoted above.  The ruling also explained that Mr. Fisher was the sole defendant and therefore he must have been the shooter, as he further admitted at sentencing, so he was ineligible for resentencing.

Mr. Fisher then appealed this ruling to the California Court of Appeal for the Second Appellate District.  Mr. Fisher argued that Judge Torrealba committed legal error by denying his petition without issuing an order to show cause or holding an evidentiary hearing, which violated Penal Code § 1172.6, as well as his state and federal constitutional rights to due process because he argued, he met the statutory criteria to make a prima facie case for resentencing.

Because he entered into a plea bargain, no jury or court made findings regarding his role in the crimes.  Additionally, his plea contained no admissions regarding his mens rea.

The Second Appellate District rejected these arguments, finding “there is no merit to Fisher’s argument that the trial court engaged in premature fact finding.  The trial court reviewed and relied upon the plea colloquy, which is part of the record of conviction.  The trial court may make a credibility determination adverse to Fisher on this basis.  See People v. Lewis (2021) 11 Cal. 5th 952, 971 (court may deny petition at prima facie stage based on the record of conviction).

The court further stated that it disagreed with Fisher that the substance of his admission during the plea colloquy is unclear.  The prosecutor summarized the facts and asked Mr. Fisher if he agreed and Mr. Fisher stated he did.  “The exchange was not ambiguous.”

Lastly, the appellate court responded to Mr. Fisher’s argument that he did not specifically admit to a particular mens rea by saying “it has no teeth.”  The court explained that since Mr. Fisher admitted he was the direct perpetrator of the crimes, Fisher could not have been convicted under the natural and probable consequences doctrine, so malice could not have been imputed to him under that theory.