Filed 8/6/26 P. v. Chavez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089258
Plaintiff and Respondent,
(Super. Ct. No. PCF311104)
v.
MANUEL HERNANDEZ CHAVEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Robert A.
Fultz, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, and Manuel
Hernandez Chavez, in propria persona, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P. J., Meehan, J. and Guerra, J.
INTRODUCTION
On December 18, 2014, a man was shot and wounded at a self-service car wash in
Earlimart. The investigation led to appellant and petitioner Manuel Hernandez Chavez
(appellant) and two other suspects. Appellant was charged with premeditated attempted
murder and other offenses, with gang and firearm enhancements and prior conviction
allegations.
In 2019, appellant pleaded no contest to attempted murder, and the trial court
dismissed the premeditation allegation and the other felony charges. Appellant also
admitted firearm and gang enhancements and prior conviction allegations. He was
sentenced to the second-strike term of 15 years. His sentence was later reduced to
14 years after dismissal of the prior prison term enhancement.
In 2022, appellant filed a petition for resentencing of his attempted murder
conviction pursuant to Penal Code1 section 1172.6. The trial court conducted the prima
facie hearing and found he was ineligible for resentencing and denied the petition. In
doing so, the court, over appellant’s objections, stated it was relying on its own
recollection of the evidence since it had presided over the preliminary hearing, and
conducted the plea and sentencing hearings. On appeal, this court reversed the trial
court’s prima facie finding and remanded the matter for issuance of an order to show
cause (OSC) and an evidentiary hearing.
On remand, the matter was assigned to another judge, who issued the OSC and
conducted the section 1172.6 evidentiary hearing. The prosecutor called witnesses to
testify at the evidentiary hearing. The trial court granted the prosecutor’s request to take
judicial notice of the preliminary hearing transcript. Appellant objected to hearsay
evidence in the preliminary hearing transcript. In ruling on the petition, the court stated it
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
was only relying on nonhearsay evidence from the preliminary hearing transcript, and the
testimony of witnesses who appeared at the evidentiary hearing.
The trial court denied appellant’s petition and found beyond a reasonable doubt
that appellant was a direct aider and abettor who acted with the intent to kill, and he was
still guilty of attempted murder after the amendments enacted by Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437) and Senate Bill No. 775 (2020–2021 Reg.
Sess.) (Senate Bill 775).
Appellant now appeals from the trial court’s denial of his petition after the
evidentiary hearing. Appellate counsel filed a brief which summarized the facts and
procedural history with citations to the record, raised no issues, and asked this court to
independently review the record pursuant to People v. Delgadillo (2022) 14 Cal.5th 216.
Appellant filed a supplemental letter brief and raises several issues.2 We review
the facts introduced at the evidentiary hearing, the preliminary hearing evidence which
the trial court considered, and appellant’s contentions, and affirm the court’s denial of the
petition.
2 On March 2, 2026, this court filed an order in this appeal advising appellant that
his attorney filed an opening brief pursuant to Delgadillo, appellant could file a
supplemental letter brief raising any arguable issue within 30 days, and if he failed to do
so, the appeal would be dismissed pursuant to Delgadillo. Appellant did not file a
supplemental letter brief within the time period.
On May 7, 2026, while this appeal was pending, appellant filed, in propria
persona, a separate petition for writ of habeas corpus with this court, seeking review of
the trial court’s denial of his section 1172.6 petition after the evidentiary hearing.
This court filed an order that denied appellant’s writ petition, but we also
construed the claims raised in his petition “as a timely filed supplemental brief responsive
to this court’s March 2, 2026 order” for supplemental briefing in this appeal. We
directed the Clerk/Executive Officer of this court to file appellant’s writ petition as his
supplemental letter brief in his appeal in case No. F089258. We address appellant’s
contentions below.
3.
FACTS
As explained above, appellant pleaded no contest to attempted murder after the
preliminary hearing. The instant appeal is from the trial court’s denial of appellant’s
section 1172.6 petition after it conducted the evidentiary hearing. The prosecutor also
called witnesses to testify at the evidentiary hearing.
Also at the evidentiary hearing, the trial court granted the prosecutor’s request to
take judicial notice of the preliminary hearing transcript. Defense counsel objected to
hearsay evidence in the preliminary hearing transcript. The court stated it would not
consider any hearsay evidence from officers which was admitted at the preliminary
hearing pursuant to section 872, subdivision (b).3
The following factual statement is thus limited to the evidence that the trial court
stated it relied on to deny appellant’s petition after the section 1172.6 evidentiary hearing:
the nonhearsay evidence from the preliminary hearing that was based on a testifying
witness’s personal knowledge, and the testimony of the witnesses who appeared at the
evidentiary hearing.
Preliminary Hearing Evidence About the Shooting Scene
At the preliminary hearing, Sergeant Merced Zamora of the Tulare County
Sheriff’s Department testified that on December 18, 2014, he responded to a shooting
scene at a gas station and self-service car wash in Earlimart. The car wash had individual
drive-in car bays.
3 As will be discussed below, section 1172.6, subdivision (d)(3) states that at the
evidentiary hearing on the petition, “hearsay evidence that was admitted in a preliminary
hearing pursuant to subdivision (b) of [s]ection 872 shall be excluded from the hearing as
hearsay, unless the evidence is admissible pursuant to another exception to the hearsay
rule.” (§ 1172.6, subd. (d)(3).)
Section 872, subdivision (b) states the trial court’s probable cause finding at a
preliminary hearing may be based “in whole or in part upon the sworn testimony of a law
enforcement officer” relating hearsay statements of declarants.
4.
Zamora testified he observed a large amount of blood on the ground just south of
bay six of the car wash, and a couple of droplets of blood on the north side of bay six that
led across the street.
Zamora also observed that one of the cinderblocks within bay six “looked like it
had been [sic] striked or been shot at.”
Detective Rodney Klassen testified the victim shot in bay six was taken to the
hospital. The victim was left paralyzed by gunshot wounds.
Evidentiary Hearing Testimony About the Car Wash Videos
At the section 1172.6 evidentiary hearing, the prosecutor called Zamora to testify
about a series of security videos that recorded the events prior to, during, and
immediately after the shooting in bay six. The videos were played in the courtroom, and
Zamora testified about the events shown on the videos.
Zamora testified that a video showed a black or dark-colored SUV pull into
bay six at the car wash. The SUV was later identified as the vehicle driven by the victim.
Zamora testified that at the same time as the SUV arrived at the car wash,
three people got out of a car that was parked across the street from the car wash. Zamora
described the clothing worn by each suspect who got out of this car: (1) one person wore
a sweatshirt that said “Cali” on it, who was later identified as the shooter; (2) another
person wore a sweatshirt with a square image and words on it that did not say “Cali,”
who was later identified as appellant, and (3) the third person had a thin physique and
wore a solid-colored sweatshirt.
Zamora testified the video showed appellant, the suspect wearing the sweatshirt
that did not say “Cali” walked into bay six of the car wash, and the other two suspects
followed him. Appellant approached the passenger door of the SUV, opened the
passenger door, and then closed that door. Appellant walked over to the driver’s side of
the SUV, opened the driver’s door, and leaned into the vehicle. A man got out of the
driver’s side of the SUV, and he was later identified as the shooting victim.
5.
Zamora testified the video showed appellant, the suspect who got the victim out of
the SUV held the victim’s right shoulder and walked him to the rear of the SUV. The
suspect wearing the “Cali” sweatshirt was standing at the rear of the SUV, and this
person slowly stepped back and moved his hand to his waistband. Appellant appeared to
pull the victim to the rear of the SUV. The suspect wearing the “Cali” sweatshirt pulled a
handgun from his waistband and pointed it at the victim’s upper body.
The trial court clarified that the video showed the person in the “Cali” sweatshirt
pointed a gun at the victim but nothing happened. The court also stated the victim
reached out with his left arm and tried to grab the gun or push it away.
Zamora testified the suspect in the “Cali” sweatshirt then shot the victim multiple
times. The victim fell down and rolled around on the ground, he was bleeding, and no
one assisted him. Someone in the SUV immediately drove away from the car wash.
Zamora testified the video showed that after the victim went down, the suspect in
the sweatshirt that did not say “Cali” held his right hand over the right side of his face.
Appellant kept his hand on his face, and with his other hand, he appeared to be
“connecting hands” or “touching hands” with the third suspect who was wearing the
solid-colored sweatshirt, and it “[a]lmost look[ed] like a handshake.”
Zamora testified the three suspects ran out of bay six to their car across the street,
got into their parked car, and left the scene.
Zamora testified the blood that he saw on the ground in bay six corresponded to
the area where the victim fell after he was shot. Zamora testified the blood drops that
were leading out of bay six were consistent with the path the three suspects took when
they ran away from the car wash, and went back to their car across the street after the
shooting.
Evidentiary Hearing Testimony About the Hospital Videos
Also at the evidentiary hearing, Zamora testified that on the day of the shooting,
he determined that appellant had been admitted to the hospital in Delano. Zamora
6.
obtained and reviewed videos from the hospital’s security cameras. Zamora testified the
videos showed appellant in the hospital as he talked to hospital staff, and that he had
facial injuries that were bandaged.
Zamora testified he compared appellant’s appearance in the hospital videos, with
the car wash videos of the suspect wearing the sweatshirt that did not say “Cali” and who
held a certain part of his face after the shooting. Zamora testified appellant’s facial
injuries and bandages, as shown in the hospital videos, were consistent with the same
facial area that the suspect, who was not wearing the “Cali” sweatshirt, held onto
immediately after the victim was shot. Appellant’s physical characteristics were also
consistent with the person at the car wash who was not wearing the “Cali” sweatshirt and
who took the victim out of the SUV, and inconsistent with the other two suspects’
appearances.
Kara Ward, a criminalist with the Department of Justice, testified at the
evidentiary hearing that the blood droplets found in the area of the car wash bay matched
appellant’s DNA.
Preliminary Hearing Evidence About Apprehension of Appellant
At the preliminary hearing, Sergeant Steven Sanchez testified that on
December 28, 2014, he was part of a team watching a car connected to appellant, and the
car was parked outside a house. Sanchez testified appellant walked out of the house and
drove away in that car. Sanchez and another deputy followed appellant’s car. Sanchez
testified the lead deputy activated the lights and siren on his marked patrol car and
attempted to conduct a traffic stop. Appellant kept driving. Sanchez testified appellant
eventually stopped the car, jumped out, and ran away. Sanchez and the other deputy ran
after appellant and repeatedly ordered him to stop. Appellant kept running, but Sanchez
and the second deputy tackled him.
7.
Sanchez testified he participated in executing a search warrant for the house that
appellant had left. Sanchez searched a bedroom and found a bag that contained a debit
card registered to appellant, along with 23 live rounds of nine-millimeter ammunition.
THE PLEA AND SENTENCING
On November 22, 2016, an information was filed in the Tulare County Superior
Court charging appellant with count 1, premeditated attempted murder (§§ 187, subd. (a),
664, 189); count 2, assault with a semiautomatic firearm (§ 245, subd. (b)); count 3, felon
in possession of ammunition (§ 30305, subd. (a)(1)); and count 4, resisting or obstructing
a peace officer (§ 148, subd. (a)(1)), with firearm and gang enhancements, two prior
strike convictions, and other prior conviction allegations.
On May 3, 2019, appellant pleaded no contest to count 1, attempted murder, and
admitted a gang enhancement (§ 186.22, subd. (b)(1)(C)) and a firearm enhancement
(§ 12022.5). He also admitted one prior strike conviction (§§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d)), one prior serious felony conviction enhancement (§ 667,
subd (a)(1)), and two prior prison term enhancements (§ 667.5, former subd. (b)). The
trial court stated the premeditation allegation as to count 1, and the other charges and
enhancements, would be dismissed.
The trial court stated the indicated aggregate sentence was 15 years and it would
strike or stay the admitted enhancements at the sentencing hearing.
On June 5, 2019, the trial court sentenced appellant to the aggregate term of
15 years, based on the midterm of seven years for attempted murder doubled to 14 years
as the second strike sentence (§§ 187, subd. (a), 664, subd. (a)), plus one year for the
section 667.5, subdivision (b) prior prison term enhancement. The court dismissed the
remaining counts and allegations, and stayed the terms imposed for the firearm
enhancement, the prior serious felony conviction enhancement, the gang enhancement,
and the second prior prison term enhancement.
8.
Appellant’s aggregate sentence was subsequently reduced to 14 years when the
trial court dismissed the prior prison term enhancement that subsequently became invalid.
SECTION 1172.6 PETITION FOR RESENTENCING
On November 9, 2022, appellant filed a petition in the trial court for resentencing
of his attempted murder conviction pursuant to section 1172.6, and checked boxes on a
preprinted form to allege he accepted a plea in lieu of a trial where he could have been
convicted of attempted murder under a now-invalid theory of imputed malice. The
prosecutor filed an opposition.
The Prima Facie Finding
On February 2, 2023, Judge Reyes, who conducted the preliminary hearing, and
the plea and sentencing hearings, convened the prima facie hearing and stated:
“I’m the judge that took the plea back when he took a plea .… The
specific incident involved alleged that [appellant] was part of a group,
one or two or maybe three, who were involved in basically setting up
someone at a car wash in Pixley or Earlimart, if I remember correctly. And
when the plea was entered, to my recollection, clearly was that his plea was
a principal and it may not have been that he was the shooter, but he clearly
was one of the individuals present that set up the incident.
“Now, I don’t have any file. For whatever reason, basically they
gave me a dummy file with only some of the pleadings. So initially I
understand your arguments, but factually I don’t think he’s eligible.”
Defense counsel objected and argued the trial court could not make factual
findings or credibility determinations at the prima facie hearing. Counsel asserted the
court could not “ ‘take into account any investigation’ ” or “ ‘go outside the petition,’ ”
and it was required to “ ‘accept what is contained in the petition is true.’ ” The court
asked: “ ‘Even if the petition is incorrect?’ ” Defense counsel asked the court to state on
the record “ ‘what in the petition is not accurate.’ ” The court asked whether the parties
had any further argument, and they submitted the matter.
9.
The court denied the petition for failing to state a prima facie case based on its
own recollection of the case.4
Appellant’s First Appeal
On appeal from the denial of his petition, appellant argued the trial court
erroneously made factual findings at the prima facie hearing to find he was ineligible for
resentencing as a matter of law. The People conceded appellant filed a facially sufficient
petition and the court impermissibly made factual findings to deny the petition at the
prima facie hearing. The People further conceded the case must be remanded for the
court to issue an OSC and conduct an evidentiary hearing pursuant to section 1172.6,
subdivision (d)(3).
In People v. Manuel Hernandez Chavez (Apr. 9, 2024, F085714), this court filed
the nonpublished opinion where we accepted the People’s concession, and reversed and
remanded the matter to the trial court with directions to issue an OSC and conduct an
evidentiary hearing pursuant to section 1172.6.
THE EVIDENTIARY HEARING
On remand, Judge Fultz appointed counsel, issued the OSC, and set a briefing
schedule for the evidentiary hearing on appellant’s petition.
4 At appellant’s prima facie hearing, neither the prosecutor nor the trial court relied
on the preliminary hearing transcript as part of the record of conviction. The prima facie
hearing was held prior to our Supreme Court’s decision in People v. Patton (2025) 17
Cal.5th 549, which held the “record of conviction” for purposes of a section 1172.6 prima
facie determination includes the transcript of a preliminary hearing preceding a guilty
plea. (Id. at p. 568.) Patton further held that a petitioner who, “despite having access to
counsel upon submission of a facially sufficient petition, offers only conclusory
allegations of entitlement to relief, in response to a record of conviction that demonstrates
the petitioner’s conviction was under a still-valid theory, has not, thereby, made a prima
facie showing.” (Id. at p. 565.) “[P]etitioners confronting a record of conviction that
demonstrates relief is unavailable have the burden of coming forward with nonconclusory
allegations to alert the prosecution and the court to what issues an evidentiary hearing
would entail.” (Id. at p. 567.)
10.
The prosecutor moved for the trial court to take judicial notice of the preliminary
hearing. The court granted the request. The prosecutor stated he would submit on the
preliminary hearing transcript.
The trial court conducted the evidentiary hearing on December 16, 2024, and
January 13, 2025. As summarized above, the prosecutor called Zamora and Ward, the
DNA witness, to testify at the evidentiary hearing, and also relied on the preliminary
hearing transcript.
The Parties’ Arguments
At the evidentiary hearing, defense counsel argued the prosecutor could not rely
on hearsay testimony from officers who testified at the preliminary hearing pursuant to
section 872, subdivision (b).
The prosecutor agreed that section 872, subdivision (b) hearsay testimony was
admitted at the preliminary hearing, and that such hearsay testimony was inadmissible at
the section 1172.6 evidentiary hearing. However, the prosecutor argued Zamora’s
preliminary hearing testimony about his interview with the victim was separately
admissible under Evidence Code section 1370’s “physical injury” exception to the
hearsay rule, and the victim was unavailable because he appeared to be evading process.5
The prosecutor argued that while appellant was not the shooter, he directly aided
and abetted the attempted murder with the intent to kill the victim. The prosecutor
asserted the car wash videos showed “a planned, orchestrated attack” on the victim, and
that appellant acted with the intent to kill. The evidence proved appellant was the person
5 Evidence Code section 1370, subdivision (a) defines the physical injury exception
to the hearsay rule, and states a hearsay statement is admissible if the statement “purports
to narrate, describe, or explain the infliction or threat of physical injury upon the
declarant,” the declarant is unavailable as a witness, the statement was made at or near
the time of the infliction or threat of physical injury; the statement was made under
circumstances that would indicate its trustworthiness; and the statement was made to a
law enforcement official.
11.
who got out of the car across the street from the car wash, wearing the sweatshirt with
words on it that did not say “Cali.” Appellant opened the driver’s door of the SUV,
leaned in, and pulled the victim out of the SUV. Appellant pulled the victim to the rear
of the SUV, and held onto him as the shooter pulled a gun and tried to shoot him. The
first shot may have misfired, but the shooter cleared the weapon and shot the victim.
The prosecutor also pointed to appellant’s conduct after the shooting that proved
his intent to kill. The car wash videos showed that after the victim was shot, appellant
and another suspect were “basically giving each other a high five or handshake or some
other motion where their hands are making contact,” which showed appellant “was
satisfied with the results, that this was a plan that had been executed in a manner that he
found to be satisfactory .…” [¶] “There’s no other purpose for them to do that. There’s
no reason for them to make contact with each other, but to express that they are pleased
or satisfied with the results.”
Defense counsel argued the evidence did not show appellant had the intent to kill,
that he knew any shooting was going to take place, or that he knew one of the suspects
had a gun. Counsel argued the videos instead showed appellant’s conduct was
“insignificant.”
The Trial Court’s Ruling
On January 13, 2025, the trial court made its ruling after the evidentiary hearing.
The court held that in order for appellant to still be guilty of attempted murder after the
amendments enacted by Senate Bills 1437 and 775, he had to be either the actual shooter,
or a direct aider and abettor who acted with the intent to kill.
The trial court denied appellant’s petition and explained the evidence that it relied
on to make this ruling:
“In reviewing the evidence in this matter, determining the result, I
will note that I am giving great weight to the testimony that was given
actually here in court [at the evidentiary hearing], the video that was
12.
played, the testimony relating to the video, the testimony given …
regarding the DNA testing.
“As far as the preliminary hearing transcript, which I have reviewed
in full, I’m only considering the evidence to which individuals testified of
their direct knowledge. I’m not considering any hearsay evidence that was
presented at the preliminary hearing, nor am I considering the evidence
presented that [the prosecutor] has proffered. While I do believe [the
prosecutor] has met the burden of Evidence Code section 1370 [as to the
victim’s hearsay statements], I’m not using that evidence in my ruling in
this matter.
“I do find by proof beyond a reasonable doubt that [appellant]
harbored the intent to kill based on all of the evidence in this matter. I find
that he does not meet the requirements for relief pursuant to …
[s]ection 1172.6, and I am denying the petition on those grounds that he
did, in fact, through his actions indicate that he harbored the intent to kill
and was therefore not eligible for relief.”
On January 28, 2025, petitioner filed a timely notice of appeal.
DISCUSSION
As explained above, appellate counsel filed a brief with this court pursuant to
Wende and Delgadillo. The brief also included counsel’s declaration that appellant was
advised he could file his own brief with this court. This court also advised appellant that
he could file a supplemental letter brief. Appellant filed a supplemental letter brief and
raises several arguments.
I. Section 1172.6
First, appellant asserts the trial court improperly gave “great weight” to certain
evidence when it denied his petition, and that in doing so, it erroneously made factual and
credibility findings and violated section 1172.6 by going “outside the petition” to deny
relief. Appellant’s arguments, however, confuse the procedures in a section 1172.6
petition.
A. Senate Bills 1437 and 775
We begin with Senate Bill 1437, which became effective in 2019 and “altered the
substantive law of murder in two areas. First, with certain exceptions, it narrowed the
13.
application of the felony-murder rule by adding section 189, subdivision (e) .… Under
that provision, ‘A participant in the perpetration or attempted perpetration of a [specified
felony] in which a death occurs is liable for murder only if one of the following is
proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual
killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the commission of murder in the
first degree. [¶] (3) The person was a major participant in the underlying felony and
acted with reckless indifference to human life, as described in subdivision (d) of
[s]ection 190.2.’ ” (People v. Curiel (2023) 15 Cal.5th 433, 448.)
“Second, Senate Bill 1437 imposed a new requirement that, except in cases of
felony murder, ‘a principal in a crime shall act with malice aforethought’ to be convicted
of murder. [Citation.] ‘Malice shall not be imputed to a person based solely on his or her
participation in a crime.’ [Citation.] One effect of this requirement was to eliminate
liability for murder as an aider and abettor under the natural and probable consequences
doctrine. [Citation.] … Thus, under prior law, a defendant who aided and abetted an
intended assault could be liable for murder, if the murder was the natural and probable
consequence of the intended assault. [Citation.] The defendant need not have intended
the murder or even subjectively appreciated the natural and probable consequences of the
intended crime. [Citation.] Senate Bill 1437 ended this form of liability for murder.”
(People v. Curiel, supra, 15 Cal.5th at p. 449; People v. Harden (2022) 81 Cal.App.5th
45, 51–52.)
As will be discussed below, Senate Bill 1437’s amendments did not eliminate
direct aiding and abetting because a direct aider and abettor must possess intent to kill.
(People v. Williams (2022) 86 Cal.App.5th 1244, 1252 (Williams).)
Senate Bill 1437 “added former section 1170.95, which created a process for those
convicted of murder under now obsolete accomplice liability theories to seek vacatur and
resentencing.” (People v. Ramos (2025) 112 Cal.App.5th 174, 183.)
14.
Effective January 1, 2022, the Legislature revised section 1170.95 through the
passage of Senate Bill 775, which permits petitioners convicted of attempted murder and
manslaughter under now-invalid theories to seek relief. (People v. Ramos, supra, 112
Cal.App.5th at p. 183.)
Effective June 30, 2022, former section 1170.95 was renumbered section 1172.6,
with no further change in text. (People v. Saavedra (2023) 96 Cal.App.5th 444, 446,
fn. 1.)
B. The Prima Facie Determination
Section 1172.6 states that a petitioner may file a petition for resentencing if
“convicted of felony murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based solely on that
person’s participation in a crime, attempted murder under the natural and probable
consequences doctrine, or manslaughter .…” (§ 1172.6, subd. (a), italics added.)
The petitioner must declare: “(1) A complaint, information, or indictment was
filed against the petitioner that allowed the prosecution to proceed under a theory of
felony murder, murder under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on that person’s
participation in a crime, or attempted murder under the natural and probable
consequences doctrine. [¶] (2) The petitioner was convicted of murder, attempted
murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted murder. [¶]
(3) The petitioner could not presently be convicted of murder or attempted murder
because of changes to [s]ection[s] 188 or 189 made effective January 1, 2019.”
(§ 1172.6, subd. (a)(1)–(3).)
After counsel is appointed and the parties have the opportunity to submit briefing,
“the court shall hold a hearing to determine whether the petitioner has made a prima facie
case for relief.” (§ 1172.6, subd. (c).)
15.
In making the prima facie determination, the trial court may look at the record of
conviction to determine whether a petitioner has made the prima facie showing. (People
v. Lewis (2021) 11 Cal.5th 952, 971.) The court cannot engage in factfinding or make
credibility findings when making the prima facie determination. (People v. Lovejoy
(2024) 101 Cal.App.5th 860, 865.)
C. The Evidentiary Hearing
“Once a petitioner establishes a prima facie case for relief and the superior court
issues an [OSC], the matter proceeds to an evidentiary hearing .…” (People v. Vargas
(2022) 84 Cal.App.5th 943, 951 (Vargas).)
“At the hearing to determine whether the petitioner is entitled to relief, the burden
of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under California law as amended by
the changes to [s]ection[s] 188 or 189 made effective January 1, 2019.” (§ 1172.6,
subd. (d)(3).)
“The admission of evidence in the [evidentiary] hearing shall be governed by the
Evidence Code, except that the court may consider evidence previously admitted at any
prior hearing or trial that is admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The court may also consider the
procedural history of the case recited in any prior appellate opinion. However, hearsay
evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of
[s]ection 872 shall be excluded from the hearing as hearsay, unless the evidence is
admissible pursuant to another exception to the hearsay rule. The prosecutor and the
petitioner may also offer new or additional evidence to meet their respective burdens.”
(§ 1172.6, subd. (d)(3).)
At the evidentiary hearing, the trial court acts as an independent fact finder, makes
credibility determinations, weighs the evidence, and determines whether the People met
its burden to prove beyond a reasonable doubt that defendant was still guilty of murder
16.
after the amendments to sections 188 and 189. (People v. Rodriguez (2024) 103
Cal.App.5th 451, 457; People v. Gudiel (2024) 107 Cal.App.5th 848, 858; People v.
Clements (2022) 75 Cal.App.5th 276, 298; People v. Harden, supra, 81 Cal.App.5th at
p. 51.)
“Although the parties may offer new or additional evidence to meet their
respective burdens, section 1172.6, subdivision (d)(3) does not contemplate a whole new
trial on all the elements of murder. [Citation.] Rather, ‘[t]he retroactive relief provided
by [section 1172.6] is a legislative “act of lenity” intended to give defendants serving
otherwise final sentences the benefit of ameliorative changes to applicable criminal laws
and does not result in a new trial or increased punishment.’ [Citations.] Thus, the focus
at the evidentiary hearing phase of [a section] 1172.6 petition is ‘on evidence made
relevant by the amendments to the substantive definition of murder,’ which, in the
context of section 188, requires ‘the prosecution to prove that all principals to a murder
acted with malice aforethought.’ ” (Vargas, supra, 84 Cal.App.5th at p. 952.)
If the trial court “finds beyond a reasonable doubt that the petitioner is guilty of
murder notwithstanding the amendments to sections 188 and 189, the petitioner is
ineligible for relief under section 1172.6.” (Vargas, supra, 84 Cal.App.5th at p. 951.)
D. Analysis
As discussed above, the trial court conducted the prima facie hearing prior to the
Supreme Court’s ruling in Patton that clarified the preliminary hearing transcript
constitutes part of the record of conviction to make the prima facie finding in a plea case
under certain circumstances. (People v. Patton, supra, 17 Cal.5th at pp. 557, 564.) The
court did not rely on or even cite to the preliminary hearing transcript when it denied his
petition at the prima facie hearing. Instead, as this court held in appellant’s prior appeal,
the trial court improperly denied appellant’s petition at the prima facie hearing because it
made factual and credibility findings based on its own recollection of the preliminary
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hearing evidence. We reversed and remanded for the court to conduct an evidentiary
hearing.
Appellant now contends that when the trial court denied his petition after the
evidentiary hearing, the court improperly gave “ ‘great weight’ ” to certain evidence,
erroneously made factual and credibility findings about the witnesses, and it again
violated section 1172.6 by going “ ‘outside the petition’ ” to deny relief.
Such arguments would be relevant to the trial court’s prima facie determination.
Indeed, this court reversed the trial court’s erroneous factual findings when it denied
appellant’s petition for failing to state a prima facie case, and we remanded the matter for
issuance of the OSC and an evidentiary hearing. At the evidentiary hearing, however, the
court acts as an independent fact finder and may make credibility determinations, weigh
the evidence, and determine whether the People met its burden to prove beyond a
reasonable doubt that defendant was still guilty of murder, attempted murder, or
manslaughter after the statutory amendments enacted by Senate Bills 1437 and 775.
(People v. Rodriguez, supra, 103 Cal.App.5th at p. 457; People v. Gudiel, supra, 107
Cal.App.5th at p. 858.)
The trial court properly made factual and credibility findings when it evaluated the
evidence introduced at the evidentiary hearing and denied appellant’s petition.
II. Appellant’s Contentions About the Trial Court’s Ruling
We next address appellant’s claims about the trial court’s alleged legal and
evidentiary errors at the evidentiary hearing. In doing so, we note that on appeal from the
court’s denial of a section 1172.6 petition after an evidentiary hearing, we review
questions of law independently, and review the court’s evidentiary rulings for an abuse of
discretion. (People v. Reyes (2023) 14 Cal.5th 981, 988; People v. Waidla (2000) 22
Cal.4th 690, 724.)
“We review the trial judge’s fact finding for substantial evidence. [Citation.] We
‘ “examine the entire record in the light most favorable to the judgment to determine
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whether it contains substantial evidence—that is, evidence that is reasonable, credible,
and of solid value that would support a rational trier of fact in finding [the defendant
guilty] beyond a reasonable doubt.” ’ [Citation.] Our job on review is different from the
trial judge’s job in deciding the petition. While the trial judge must review all the
relevant evidence, evaluate and resolve contradictions, and make determinations as to
credibility, all under the reasonable doubt standard, our job is to determine whether there
is any substantial evidence, contradicted or uncontradicted, to support a rational fact
finder’s findings beyond a reasonable doubt.” (People v. Clements, supra, 75
Cal.App.5th at p. 298.)
A. Appellant’s Hearsay Claims
Appellant asserts that the trial court stated at the evidentiary hearing that it would
only consider preliminary hearing testimony from witnesses that was based on their own
personal knowledge, and it would not rely on any hearsay evidence. He complains the
court improperly relied on Zamora’s hearsay testimony at the preliminary hearing about
the victim’s statements.
Appellant’s argument is refuted by the entirety of the record. At the beginning of
the evidentiary hearing, the trial court granted the prosecutor’s request to take judicial
notice of the preliminary hearing transcript. Defense counsel objected and argued that
hearsay evidence from the preliminary hearing transcript was inadmissible at the
evidentiary hearing. The prosecutor agreed that the court could not consider hearsay
evidence from a law enforcement officer who testified at the preliminary hearing
pursuant to section 872, subdivision (b). The prosecutor argued, however, that Zamora’s
testimony at the preliminary hearing about his interview with the victim was separately
admissible under the “physical injury” exception to the hearsay rule stated in
Evidence Code section 1370, subdivision (a).
At the conclusion of the evidentiary hearing, the trial court expressly stated which
evidence it would consider from the preliminary hearing to make its findings:
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“As far as the preliminary hearing transcript, which I have reviewed
in full, I’m only considering the evidence to which individuals testified of
their direct knowledge. I’m not considering any hearsay evidence that was
presented at the preliminary hearing, nor am I considering the evidence
presented that [the prosecutor] has proffered. While I do believe [the
prosecutor] has met the burden of Evidence Code section 1370 [as to the
victim’s hearsay statements], I’m not using that evidence in my ruling in
this matter.”
Appellant’s hearsay claims are thus refuted by the trial court’s statements when it
denied his petition after the evidentiary hearing—that it denied the prosecutor’s motion
and did not consider the victim’s hearsay statements.
B. Appellant’s Intent to Kill
Appellant acknowledges that in order for the trial court to find he was a direct
aider and abettor to the attempted murder, the court had to find he acted with the intent to
kill. Appellant argues the court’s denial of his petition was entirely based on the car
wash videos, he was not identified in those videos, and the videos and DNA evidence did
not prove that he “ ‘harbored’ ” any kind of intent or knew what was going to happen.
“Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee
(2003) 31 Cal.4th 613, 623.) After the amendments enacted by Senate Bills 1437
and 775, the Legislature eliminated the natural and probable consequences theory of
attempted murder, but did not eliminate the direct aider and abettor theory of attempted
murder. (People v. Richee (2025) 111 Cal.App.5th 281, 294; People v. Cortes (2022) 75
Cal.App.5th 198, 204–205; Williams, supra, 86 Cal.App.5th at p. 1252.)
To be guilty of attempted murder as a direct aider and abettor, “a person must give
aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with
the purpose of facilitating the direct perpetrator’s accomplishment of the intended
killing—which means that the person guilty of attempted murder as an aider and abettor
must intend to kill.” (People v. Lee, supra, 31 Cal.4th at p. 624.)
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“A direct aider and abettor’s ‘guilt is based on a combination of the direct
perpetrator’s acts and the aider and abettor’s own acts and own mental state.’ ”
(Williams, supra, 86 Cal.App.5th at p. 1252.) The direct aider and abettor must
“necessarily ‘know and share the murderous intent of the actual perpetrator.’ ” (People v.
Offley (2020) 48 Cal.App.5th 588, 596.) Direct evidence of a defendant’s malice and
intent to kill rarely exists, and it may be inferred from the circumstances of the crime and
the defendant’s words and actions. (People v. Smith (2005) 37 Cal.4th 733, 741; People
v. Sanchez (2016) 63 Cal.4th 411, 457.)
Analysis
The trial court’s finding that appellant was still guilty of attempted murder as a
direct aider and abettor is supported by substantial evidence. First, the entirety of the
record establishes that appellant was the suspect who got out of the car that was parked
across the street from the car wash, he was with two other suspects, and he was the
person wearing the sweatshirt with words that did not say “Cali.” Zamora testified this
suspect held his right hand over the right side of his face immediately after the shooter
shot the victim, raising the inference that this suspect was somehow injured during the
shooting. Zamora testified he noticed that one of the cinderblocks in bay six appeared to
have been damaged by a bullet.
Zamora further testified that he compared this suspect’s appearance in the car
wash videos, with videos from the hospital where appellant sought treatment on the same
day as the shooting. Zamora testified the suspect at the car wash, who was wearing the
sweatshirt that did not say “Cali,” was holding the right side of his face immediately after
the shooting, and the hospital videos showed appellant’s face was injured and bandaged
in the same area. Zamora further testified appellant’s physical appearance matched the
suspect at the car wash wearing the sweatshirt that did not say “Cali.” Moreover, the
prosecutor introduced evidence that visible blood droplets led out of bay six and toward
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the area where the three suspects ran back to their car after the shooting, and these blood
droplets matched appellant’s DNA.
Based on this evidence, the prosecutor proved appellant was the suspect wearing
the sweatshirt that did not say “Cali” and that he acted with the intent to kill. Appellant
and the two other suspects got out of their car as soon as the victim’s SUV pulled into the
car wash bay. Appellant walked directly to the SUV, opened the passenger door, looked
inside, closed the passenger door, and then walked to the driver’s door. Appellant
opened the driver’s door, leaned in, and the victim got out of the driver’s seat of the SUV.
Appellant held the victim’s arm and forced him to the rear of the SUV, where the shooter
pulled a gun and the weapon may have misfired. The shooter eventually re-racked the
weapon and shot the victim. The car wash videos showed that immediately after the
shooting, appellant held his right hand on the right side of his face where he was
apparently injured, but he used his other hand to either shake hands or high five the
third suspect in the dark colored sweatshirt as they ran back to their car, and constitutes
circumstantial evidence that appellant knew the victim was going to be shot and approved
of their joint efforts to make it happen.
The trial court’s finding that appellant was a direct aider and abettor who acted
with the intent to kill is thus supported by substantial evidence. Appellant was identified
based on the comparisons of the car wash and hospital videos, and his actions at the car
wash constitutes circumstantial evidence that he knew and shared the murderous intent of
the actual gunman, he aided and abetted the actual gunman with knowledge of that
person’s unlawful purpose, and he demonstrated his approval that the gunman shot the
victim.
DISPOSITION
The trial court’s ruling on January 13, 2025, denying appellant’s section 1172.6
petition for resentencing after the evidentiary hearing, is affirmed.
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