Filed 6/25/26 P. v. Contreras CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G064890
v. (Super. Ct. No. 10CF2647)
ALFRED MICHAEL CONTRERAS, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of
Orange County, Lewis W. Clapp, Judge. Affirmed.
Benjamin Kington, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland and Arlene A.
Sevidal, Assistant Attorneys General, Alan L. Amann and A. Natasha Cortina,
Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Alfred Michael Contreras pleaded guilty to one count
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of attempted murder (Pen. Code, §§ 187, subd. (a), 664) and admitted the
attempted murder was for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)). The prosecution dismissed one count of street terrorism,
enhancements pursuant to sections 12022.53, subdivision (c) and 12022.7,
subdivision (a), and a willful, deliberate, and premeditated allegation
pursuant to section 664, subdivision (a).
The court sentenced defendant to 17 years in state prison as
follows: (1) seven years on the attempted murder count; and (2) a consecutive
term of 10 years for the gang enhancement.
In September 2022, defendant filed a petition for resentencing
under section 1172.6. The trial court summarily denied defendant’s petition
for resentencing, and defendant appealed. This court concluded defendant
should be afforded an evidentiary hearing, reversed the trial court’s summary
denial, and remanded for further proceedings. (People v. Contreras (Apr. 23,
2024, G062418) [nonpub. opn.] (Contreras I).)
After an evidentiary hearing on remand, the trial court denied
the petition. Defendant filed a timely notice of appeal.
Defendant now argues insufficient evidence supports the trial
court’s holding that he was ineligible for resentencing. For the reasons post,
we disagree and affirm the trial court’s order.
1
All further statutory references are to the Penal Code.
2
STATEMENT OF FACTS
I.
THE UNDERLYING CRIME
One night in 2010, M.E., the 16-year-old victim, was standing
outside an apartment complex in the City of Santa Ana. While waiting for his
mother to pick him up, M.E. heard multiple gunshots and was shot once in
the hand. At the time, M.E. was a member of a “tagging crew” called
“‘Keeping It Real’” or “KIR.” Other groups considered “KIR” members to be
future members of the West Myrtle gang.
II.
THE VICTIM’S STATEMENTS TO THE POLICE
While receiving treatment at the hospital, M.E. spoke to the
police. He described the shooter as an 18 to 20 year old Hispanic male who
was wearing a black sweatshirt. He also said the shooter was about five feet
nine inches tall and had a skinny build.
Around 10 days after the incident, detective Erik Rivas and
officer Matt McLeod interviewed M.E. According to M.E., a white vehicle
pulled up, someone asked where he was from, and M.E. responded, “‘I don’t
really bang.’” M.E. further reported the front passenger exited the vehicle,
“called [him] out[,]” and was “[s]hooting [at him] over the roof of the car.”
M.E. believed the group belonged to the “F-Troop” gang and recognized the
vehicle from a prior assault on him. He also saw an F-Troop member (Rookie)
in the back of the vehicle and had “heard it was F-Troop.”2 He likewise heard
2
The evidence suggests M.E. heard from others that F-Troop was
involved.
3
that another F-Troop member (Boxer) was in the back of the vehicle, but he
did not see Boxer. He described Rookie and Boxer as being skinny.
III.
THE VICTIM’S REVIEW OF A PHOTOGRAPHIC LINEUP
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A few days later, detectives Rivas and Navarro visited M.E.’s
home and showed a “six-pack photographic lineup” to him. After reviewing
the photographs, M.E. indicated the shooter could have been one of two
individuals depicted. Detective Rivas questioned if he was sure and then
generally asked if M.E. recognized anyone else he knew. After M.E. identified
additional individuals he knew, detective Rivas asked, “You said that the
shooter was heavyset?” M.E. agreed. Detective Rivas then said, “But these
guys look like they’re heavy . . . .” Detective Rivas also asked if the shooter
was wearing a black shirt, but M.E. said he did not know. M.E. then
identified defendant as the shooter.
IV.
THE PRELIMINARY HEARING AND INFORMATION
At the preliminary hearing in 2012, the prosecutor proceeded on
the theory that defendant was the sole shooter. Defendant was the only
person identified as getting out of the vehicle and shooting the victim. No
others in the vehicle were identified.
The information also charged defendant alone with attempted
murder and with personally discharging a firearm in the commission of the
attempted murder.
3
Detective Navarro’s first name is not referenced in the record on
appeal.
4
V.
DEFENDANT’S GUILTY PLEA
As the factual basis for his guilty plea, defendant stated: “8-16-
10, I willfully + unlawfully + with the intent to kill, attempted to murder
John Doe, a human being. I did this for the benefit of the Fx-Troop gang,
whose members I knew have engaged in a pattern of criminal activity + with
the specific intent to promote, further + assist in criminal conduct by Fx-
Troop members.” The prosecutor agreed to dismiss the firearm enhancement
in exchange for defendant’s plea.
VI.
DEFENDANT’S PETITION FOR RESENTENCING
In September 2022, defendant filed a petition for resentencing
under section 1172.6. “In his petition for resentencing, defendant averred: ‘1.
A complaint, information, or indictment was filed against me 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. [Citation.] [¶] 2. I was convicted of murder, attempted murder, or
manslaughter following a trial or I accepted a plea offer in lieu of a trial at
which I could have been convicted of murder or attempted murder. [Citation.]
[¶] 3. I could not presently be convicted of murder or attempted murder
because of changes made to [sections] 188 and 189, effective January 1,
2019.’” (Contreras I, supra, G062418.)
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VII.
THE TRIAL COURT’S SUMMARY DENIAL
After a hearing, the court denied defendant’s petition for
resentencing at the prima facie stage. “In a statement of decision, the court
acknowledged defendant was not automatically precluded from resentencing
relief because he had pled guilty to attempted murder. But the court held
defendant was ineligible for resentencing as a matter of law because he
admitted he attempted to murder the victim with the intent to kill. According
to the court, this meant defendant acted with express malice, and malice was
not imputed based solely on his participation in a crime. The court also
emphasized the information alleged defendant alone committed the
attempted murder and did not reference any coparticipants. The court
concluded the natural and probable consequences doctrine did not apply to
actual perpetrators.” (Contreras I, supra, G062418.)
Another panel of this court reversed the trial court’s summary
denial and remanded for further proceedings. (Contreras I, supra, G062418.)
In doing so, the court explained: “When a defendant is found guilty of
attempted murder under a natural and probable consequences theory of
liability, the specific intent to kill is imputed to the defendant from the actual
killer or perpetrator. [Citation.] Thus, the factual basis for defendant’s guilty
plea, though admitting a specific intent to kill, did not demonstrate as a
matter of law that he was not convicted, or could not have been convicted,
under the natural and probable consequences doctrine.” (Ibid.) The court
further noted it was “possible a principal or an aider and abettor was charged
separately—outside the record of conviction—or could not be charged
because, for example, the principal or aider and abettor had died, or the
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prosecution for whatever reason decided not to charge anybody else for the
crime.” (Ibid.)
VIII.
THE EVIDENTIARY HEARING ON REMAND
On remand, the trial court held an evidentiary hearing.
A. The Victim’s Testimony
M.E. testified someone pointed a gun at him, but he could not
recall the person’s face. He generally claimed to not remember any details
about the incident or his statements to the police.
B. Defendant’s Testimony
Defendant denied being the shooter or at the scene of the
shooting. He also noted he was charged in another case around the same
time. When asked why he pleaded guilty in the instant case, he claimed it
was “because . . . it was the only offer [he] was given” “[s]o it was either sign
that or go to trial on both of [the cases]” and he “didn’t want to risk getting
two life sentences, or one life sentence, when [he] could just sign it and have a
date.” Defendant further acknowledged he was aware of the preliminary
hearing proceedings, including the prosecution’s theory that he was the sole
shooter.
C. Detective Rivas’ Testimony
Detective Rivas next testified that M.E. reported he was shot by
someone who M.E. believed was a member of the F-Troop gang. Detective
Rivas further testified he showed “multiple photographic lineups” to M.E.
who identified defendant as the shooter. He also generally recounted M.E.’s
statements made during the police investigations.
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During cross-examination, defendant’s attorney probed potential
weaknesses in the photographic lineup in an attempt to undermine the
validity of the process and M.E.’s identification of defendant.
D. Dr. John Wixted’s Testimony
The parties generally disagreed as to whether the issue of the
shooter’s identity was properly before the court. Defendant claimed it was
relevant while the prosecutor disagreed. According to the prosecutor, the
evidentiary hearing was not a new trial and did not allow defendant to raise
claims of trial error. Given defendant’s guilty plea, the prosecutor argued “the
issue of identity [was] not squarely before [the] [c]ourt.” The court was
skeptical as to whether evidence “regarding . . . [the] unreliability of [M.E.’s]
identification [of defendant]” was relevant, but it ultimately considered the
testimony of Dr. John Wixted, an expert on identification.
Dr. Wixted testified about best practices for a photographic
lineup. According to Dr. Wixted, “[e]very photo in the lineup should match
the witness’s description of the perpetrator.” He further recommended “the
person who administers the photo lineup, be blind to the identity of the
suspect so that the officer doesn’t unconsciously steer the witness to pick that
suspect.”
Dr. Wixted also explained how the identification procedure used
by detective Rivas was unreliable. He testified detective Rivas made
suggestive comments and questions, which implied he knew the shooter’s
identity. He concluded: “[T]he memory evidence in this case, properly
understood, suggests that [defendant] was not the shooter.” In making this
assessment, Dr. Wixted recalled that M.E. described the shooter as “skinny”
during the first police interview. Dr. Wixted noted the shooter was described
as “chunky” a few weeks later, which suggests “memory contamination.”
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E. Alfonso Ochoa’s Testimony
Defense investigator Alfonso Ochoa testified he contacted M.E. in
2012. According to Ochoa, M.E. told him that he “only picked someone [from
the photographic lineup] because that was the only way to get rid of the
detectives.” M.E. felt “pressured” and said one of the detectives kept pointing
to one of the photographs.
F. Dr. Elizabeth Cauffman’s Testimony
By stipulation, defendant submitted Dr. Cauffman’s testimony
about adolescent brain development.
IX.
THE COURT’S DENIAL OF DEFENDANT’S PETITION
At the end of the hearing, the court denied defendant’s petition.
Although defendant had already served his sentence, the court did not find
his testimony to be credible, reasoning he still had an incentive to seek relief
from the conviction. The court likewise did not find detective Rivas’ testimony
to be credible because he had “an agenda in every one of these gang cases.”
The court also noted Dr. Wixted pointed out “things that . . . were
suggestive about the photo ID,” but he did not say the identification was
unreliable. Regardless, the court believed M.E.’s identification based on the
photographic lineup was unreliable.
The court next emphasized defendant’s guilty plea. The court
explained: “[I]f a person decides to admit guilt, maybe it’s because they’re
trying to avoid a greater punishment later, or maybe it’s because they really
are guilty . . . . [¶] I can’t, in this situation, in this case, say it’s one or the
other. We have the defendant who testified that it is the other, that it’s
because he was trying to avoid the greater risk. [¶] But, again, the [c]ourt
does not consider him a reliable witness at this point. I have a Tahl form . . .
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where he stated that he was pleading guilty because he’s guilty, and for no
other reason . . . . [¶] [H]e said, I am, in fact, guilty, and for no other reason.
And I declare under penalty of perjury that I’ve read, understood, and
personally initialed all of the items. Everything in this form is true and
correct, and he signs it.”
Earlier in the hearing, the court acknowledged defendant’s
counsel was trying to undermine the reliability of the photographic lineup to
establish insufficient evidence that defendant was the actual killer. But the
court emphasized defendant admitted under oath that he was the actual
shooter. The court quoted the following language in the Tahl4 form: “‘I
willfully and unlawfully, and with the intent to kill, attempted to murder
John Doe, a human being.’” The court further noted defendant admitted he
committed the crime for the benefit of F-Troop and “already stated, under
oath, when he said that he was waiving his rights, he’s entering a guilty plea
because he is, in fact, guilty and for no other reason.”
Given these facts, the court denied the petition. Defendant filed a
timely notice of appeal.
DISCUSSION
Defendant contends insufficient evidence supports the trial
court’s holding that he was ineligible for resentencing on his attempted
murder conviction. He notes the trial court relied on the change of plea form,
but he argues another panel of this court “already held . . . the change of plea
form, which tracks the generic definition of attempted murder, was not an
admission that [defendant] personally harbored malice.” Defendant
4
In re Tahl (1969) 1 Cal.3d 122, overruled on other grounds in
Mills v. Municipal Court (1973) 10 Cal.3d 288, 291.
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accordingly claims no rational trier of fact could conclude defendant was the
shooter based on the change of plea form. For the reasons post, defendant’s
argument misapprehends the nature of the prior appellate opinion and the
posture of this proceeding.
I.
APPLICABLE LAW AND STANDARD OF REVIEW
“Effective January 1, 2019, the Legislature passed Senate Bill
1437 ‘to amend 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.’” (People v. Lewis (2021) 11
Cal.5th 952, 959.) Effective January 1, 2022, Senate Bill No. 775 (2021-2022
Reg. Sess.) (Stats. 2021, ch. 551, § 2) amended section 1172.6 to expand
resentencing eligibility to persons convicted of attempted murder. A
defendant convicted of attempted murder is eligible for relief under section
1172.6 only if that conviction was based on the natural and probable
consequences doctrine. (People v. Coley (2022) 77 Cal.App.5th 539, 548.)
Thus, a defendant convicted of attempted murder either as an actual
perpetrator or a direct aider and abettor is not eligible for relief. (People v.
Cortes (2022) 75 Cal.App.5th 198, 204.)
The burden of proof is on the prosecution to prove beyond a
reasonable doubt the defendant is ineligible for resentencing. (§ 1172.6, subd.
(d)(3).) To determine if a trial court properly denied a section 1172.6 petition
after an evidentiary hearing, we review the factual findings for substantial
evidence. (People v. Arnold (2023) 93 Cal.App.5th 376, 383.) “We view the
facts in the light most favorable to the People. In this process, we presume in
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support of the judgment the existence of every fact that can be reasonably
deduced from the evidence, whether direct or circumstantial. [Citations.] We
must accept factual inferences in favor of the trial court’s ruling.” (People v.
Mitchell (2022) 81 Cal.App.5th 575, 591.)
II.
SUFFICIENCY OF THE EVIDENCE
“Attempted murder requires (1) a specific intent to kill and (2) a
direct but ineffectual act toward accomplishing the intended killing.” (People
v. Mejia (2012) 211 Cal.App.4th 586, 605.) Unlike murder, attempted murder
requires express malice and “cannot be proved based upon a showing of
implied malice.” (Ibid.)
Here, defendant admitted he “willfully + unlawfully + with the
intent to kill, attempted to murder John Doe, a human being” “for the benefit
of the Fx-Troop gang . . . with the specific intent to promote, further + assist
in criminal conduct by Fx-Troop members.” Defendant clearly admitted the
first element of attempted murder—i.e., a specific intent to kill. Substantial
evidence also supports finding that he was the direct perpetrator, which
satisfies the second element of attempted murder. It is undisputed one person
exited the vehicle associated with F-Troop, asked where M.E. was from, and
fired multiple times at M.E. Defendant subsequently pleaded guilty to
attempted murder after being charged as the only perpetrator and sitting
through a preliminary hearing where the evidence identified him as the sole
shooter. It accordingly was reasonable for the trial court to conclude
defendant admitted he was the direct perpetrator.
Although the trial court found M.E.’s identification based on the
photographic lineup to be unreliable, it also rejected defendant’s testimony
that he pleaded guilty solely for tactical reasons. Instead, the court credited
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the admissions contained in the plea. Credibility determinations of this kind
are within the province of the trial court. (People v. Clements (2022) 75
Cal.App.5th 276, 298.) We are not at liberty to reweigh them on appeal.
Relying on the prior appellate opinion, defendant insists his plea
cannot support the trial court’s denial of the petition. To the contrary,
nothing in the appellate opinion rendered defendant’s admissions
inadmissible or irrelevant at the evidentiary stage. In remanding for an order
to show cause, another panel of this court held defendant’s plea did not
foreclose eligibility for relief at the prima facie stage. (Contreras I, supra,
G062418.) The court did not resolve what weight the plea admission might
carry as evidence at an evidentiary hearing. As the trier of fact, the trial
court was entitled to consider this admission as evidence bearing on
defendant’s role in the offense. Such admissions do not, by themselves,
conclusively establish the theory of conviction for purposes of prima facie
eligibility, but they remain probative of defendant’s mental state and
participation in the offense. (See 1172.6, subd. (d)(3); People v. Rodriguez
(2024) 103 Cal.App.5th 451, 456–459; People v. Garrison (2021) 73
Cal.App.5th 735, 738.)
We also note it is not our role to determine whether we would
have reached the same conclusion. Our role is to determine whether any
substantial evidence, viewed in the light most favorable to the ruling,
supports the conclusion reached by the trier of fact. (People v. Clements,
supra, 75 Cal.App.5th at p. 298.) It does. Defendant’s admission that he
personally attempted to murder the victim with intent to kill, when viewed in
context, constitutes evidence of direct participation in the charged offense.
The existence of other occupants in the vehicle does not compel a contrary
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conclusion under the applicable standard of review, which requires us to
accept reasonable inferences drawn by the trial court in support of its ruling.
DISPOSITION
The postjudgment order is affirmed.
SANCHEZ, J.
WE CONCUR:
MOORE, ACTING P. J.
DELANEY, J.
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