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REVERSED: Admission of Firearm Use in Killing at Prelim Must Supply the Basis for Plea

People v. Davenport Docket: A161954 (First Appellate District), Opinion Date: November 10, 2021. In 2007, Davenport pled no contest to second-degree murder with a personal use of a firearm enhancement. He acknowledged: I am satisfied that I know the evidence that could be used against me in trial, as well as any possible defense ... I agree that a jury or judge who heard the evidence against me could find me guilty of the charges to which I am pleading guilty/no contest. In 2018, Senate Bill 1437 amended Penal Code section 189 to limit liability for murder under a felony-murder or natural and probable consequences theory to a person who is the actual killer, has the intent to kill and aids or abets the actual killer, or is a major participant in the underlying felony and acts with reckless indifference to human life. In 2019, Davenport filed a petition for resentencing, alleging he was tried under an information that allowed the prosecution to proceed on a felony-murder theory or under the natural and probable consequences doctrine, that he pled no contest to second-degree murder because he believed he could have been convicted of first-degree murder under either doctrine, and that he could not now be convicted of first or second-degree murder. The court summarily denied the petition, citing Davenport’s admission to the firearm enhancement and the preliminary hearing transcript: Davenport approached a car in which his former girlfriend was sitting with her new boyfriend, and killed the victim by shooting him at close range. The court of appeal reversed and remanded. By relying on facts stated in the transcript without any stipulation that the facts supplied a basis for his plea, the trial court erroneously concluded he failed to make a prima facie showing of entitlement to relief.


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