Filed 10/22/26 P. v. Velasquez CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089921
Plaintiff and Respondent,
(Super. Ct. No. 02CM2541AHTA)
v.
EFRAIN VELASQUEZ,
OPINION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Kings County. Marianne Gilbert,
Judge.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Darren K. Indermill and
Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Efrain Velasquez1 (appellant) is serving a life sentence for first degree murder and
appeals from the trial court’s denial of his Penal Code section 1172.62 petition for
resentencing. Appellant argues that he stated a prima facie case for relief and the trial
court improperly found he was ineligible for relief as a matter of law. We affirm the trial
court’s order denying the petition for resentencing.
FACTUAL AND PROCEDURAL HISTORY
On July 5, 2002, the Kings County District Attorney charged appellant and his
codefendant, Antonio Balcazar with the murder of Ramon Rodriguez (§ 187). The
complaint further alleged special circumstances that the murder was intentional and
perpetrated by means of discharging a firearm from a motor vehicle with intent to inflict
death (§ 190.2, subd. (a)(21)), and the murder was committed to further the activities of a
criminal street gang (§ 190.2, subd. (a)(22)). Finally, the complaint alleged the offense
was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)),
appellant, but not his codefendant, personally used a firearm in the commission of the
crime (§ 12022.53, subds. (d), (e)(1)).
On April 2, 2003, pre-preliminary hearing, appellant entered a plea of no contest
to first degree murder, and all other allegations were stricken. Appellant waived his right
to a preliminary hearing and had the following exchange with the trial court:
“THE COURT: .… Then to the charge that on or about
June 29th, 2002, you committed a felony violation of [s]ection 187(a) of
the Penal Code, that you did unlawfully and with malice aforethought
murder Ramon Rodriguez, a human being; being further alleged that the
aforesaid murder was committed willfully, deliberately and with
premeditation within the meaning of Penal Code [s]ection 189 and is a
1 Appellant is referred to by various names throughout the record. For consistency,
we use the name “Efrain Velasquez,” as reflected in the abstract of judgment.
2 Further undesignated references to code are to the Penal Code.
2.
serious felony within the meaning of Penal Code [s]ection 1192.7(c), to
that charge how do you now plead, guilty, not guilty, no contest?”
“THE DEFENDANT: No Contest.
[¶] … [¶]
“MR. LoSTRACCO: Yes, your Honor, and pursuant to
People [v.] West, we would stipulate to [a] factual basis.”
On December 16, 2022, appellant filed a petition for resentencing pursuant to
section 1172.6 (formerly § 1170.95). Appellant was appointed counsel and the matter
proceeded to an “evidentiary hearing regarding whether the defense has made a prima
facie showing.” On May 19, 2025, the court ruled:
“The issue before the Court is whether [appellant] has
established a prima facie claim for relief and the
law … currently, [we] look at the record of conviction. This
is the Lewis case. It’s a 2021 case, 11 Cal.5th 952. The trial
court can rely on the record of conviction in determining
whether a prima facie showing has been made. The record
herein, including the transcript of the no contest plea that
we’ve been discussing here on the record, proves that
[appellant] pled no contest to unlawfully and with malice
aforethought murdering Ramon Rodriguez, a human being,
and that the murder was committed willfully, deliberately and
with premeditation. Not contained within the record of
conviction are the police reports and, notably, the police
reports are hearsay unless without an exception they cannot
be considered in a prima facie hearing. Now, that’s the
current state of the law.
“Typically, on a case like this the person that’s
disadvantaged by the current state of the law is the People.
This is a reverse situation that implicates the difficulty for the
[appellant] because the Court cannot look at the police reports
without a stipulation that that’s the factual basis. The Court’s
mindful of the Romero case that the People also cite and
Romero is distinguishable from this particular case in so
much as it was a post preliminary hearing and the parties
stipulated to the factual basis of the preliminary hearing
transcript. This is a pre[-]preliminary hearing, a West plea,
3.
with no factual basis. Just a stipulation that there is one. And
they use in the transcript of the plea the record of conviction.
It uses those magic words to sustain actual malice, so,
therefore, the Court finds that the petitioner has failed to
establish a prima facie claim for relief and his petition for
resentencing is denied.”
Appellant filed a timely appeal on June 3, 2025.
DISCUSSION
Appellant argues that the record of conviction does not conclusively establish his
ineligibility for resentencing as a matter of law. Appellant asserts that the generic charge
of murder did not limit the People from prosecuting him on any particular theories, and
that a defendant who enters a plea for murder with malice aforethought is not
categorically incapable of making a prima facie showing of eligibility for relief.
A. Applicable law
The Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.) “to more
equitably sentence offenders in accordance with their involvement in homicides.”
(Stats. 2018, ch. 1015, § 1, subd. (b).)
“Senate Bill [No.] 1437 altered the substantive law of murder in two areas. First,
with certain exceptions, it narrowed the application of the felony-murder rule by
adding section 189, subdivision (e) to the [section]189. 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 Section 190.2.’ (§ 189, subd. (e).)” (People v.
Curiel (2023) 15 Cal.5th 433, 448 (Curiel).)
4.
“Second, Senate Bill [No.] 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. (§ 188, subd. (a)(3).) ‘Malice shall not be imputed to a person
based solely on his or her participation in a crime.’ (Ibid.) One effect of this requirement
was to eliminate liability for murder as an aider and abettor under the natural and
probable consequences doctrine.” (Curiel, supra, 15 Cal.5th at p. 449.)
Under section 1172.6, “A person 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 may file a
petition with the court that sentenced the petitioner to have the petitioner’s murder,
attempted murder, or manslaughter conviction vacated and to be resentenced on any
remaining counts ....” (§ 1172.6, subd. (a).)
“Under newly enacted section 1172.6, the process begins with the filing of a
petition containing a declaration that all requirements for eligibility are met (id.,
subd. (b)(1)(A)), including that ‘[t]he petitioner could not presently be convicted of
murder or attempted murder because of changes to [s]ection 188 or 189 made effective
January 1, 2019,’ the effective date of Senate Bill [No.] 1437 (§ 1172.6, subd. (a)(3)).”
(People v. Strong (2022) 13 Cal.5th 698, 708–709 (Strong).)
“When the trial court receives a petition containing the necessary declaration and
other required information, the court must evaluate the petition ‘to determine whether the
petitioner has made a prima facie case for relief.’ [Citations.] If the petition and record
in the case establish conclusively that the defendant is ineligible for relief, the trial court
may dismiss the petition. [Citations.] If, instead, the defendant has made a prima facie
showing of entitlement to relief, ‘the court shall issue an order to show cause.’ (§ 1172.6,
subd. (c).) If there has been ‘a prior finding by a court or jury that the petitioner did not
act with reckless indifference to human life or was not a major participant in the felony,
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the court shall vacate the petitioner’s conviction and resentence the petitioner.’ (Id.,
subd. (d)(2).) Additionally, the parties may stipulate that the petitioner is eligible for
resentencing. (Ibid.) Otherwise, the court must hold an evidentiary hearing at which the
prosecution bears the burden of proving, ‘beyond a reasonable doubt, that the petitioner is
guilty of murder or attempted murder’ under state law as amended by Senate Bill
[No.] 1437. (§ 1172.6, subd. (d)(3).)” (Strong, supra, 13 Cal.5th at pp. 708–709.)
B. Appellant is ineligible for resentencing as a matter of law
This court has previously addressed the question of whether a defendant who
pleads to “intentional, deliberate and premeditated” first degree murder is eligible for
resentencing pursuant to section 1172.6. In People v. Romero (2022) 80 Cal.App.5th 145
(Romero), this court found such a plea renders appellant ineligible for relief.
In Romero, the petitioner was charged with first degree murder (§ 187, subd. (a)),
with the allegation that he acted intentionally, deliberately, and with premeditation, and
with the special circumstances that the murder was committed for financial gain (§ 190.2,
subd. (a)(1)) and by means of lying in wait (§ 190.2, subd. (a)(15)). The information also
charged him with conspiracy to commit murder (§ 182). (Romero, supra, 80 Cal.App.5th
at p. 148.) Postpreliminary hearing, the petitioner pleaded no contest to first degree
murder (§ 187, subd. (a)), and admitted the allegation that he acted intentionally,
deliberately, and with premeditation in the commission of the offense. (Id. at p. 149.)
The People provided the following factual basis for the plea:
“ ‘[O]n the 29th of April of 2004, this [petitioner] ... agreed to
drive a person over to the home of Martin Leon so that the other
person could shoot Mr. Leon to death. [Petitioner] knew that the
shooting was planned, that ... it was planned that Mr. Leon would be
killed. [Petitioner] did so in return for the promise of money.’ ”
(Ibid.)
The petitioner filed a petition for resentencing, and the trial court denied the
petition finding the petitioner was not entitled to relief as a matter of law. (Id. at p. 150.)
6.
This court affirmed the trial court’s order denying the defendant’s petition for
resentencing. This court found “[p]ursuant to section 1170.95, a petitioner is ineligible
for resentencing if he or she was the actual killer, acted with the intent to kill or malice
aforethought, or was a major participant in the underlying felony who acted with reckless
indifference to human life. [Citations.] Here, petitioner entered a plea of no contest to
the offense of first degree murder, and admitted the allegation that he ‘acted intentionally,
deliberately and with premeditation’ in the commission of the offense. By admitting this
allegation, petitioner admitted facts necessary to sustain his murder conviction under the
law as amended by Senate Bill No. 1437.” (Romero, supra, 80 Cal.App.5th at p. 152.)
Petitioner argued that his admission did not establish he acted with actual malice.
This court disagreed. “Petitioner relies on cases that have held that a generic charge of
murder committed ‘ “willfully, unlawfully, and with malice aforethought,” ’ does not
specify or exclude any particular theory of murder and thus does not establish
ineligibility for resentencing as a matter of law. [Citations.] However, petitioner did not
merely admit to having committed murder ‘ “willfully, unlawfully, and with malice
aforethought,” ’ but rather to having committed murder ‘intentionally, deliberately and
with premeditation.’ His admission to intentional, deliberate, and premeditated murder
establishes that he acted with actual malice sufficient to sustain the murder conviction
under the law as amended by Senate Bill No. 1437.” (Romero, supra, 80 Cal.App.5th at
p. 153.)
This case is directly comparable. Appellant was charged with first degree murder,
perpetrated by means of discharging a firearm from a motor vehicle with intent to inflict
death, and committed in furtherance of a criminal street gang. Appellant was also solely
charged with personally using a firearm in the commission of the crime, identifying him
as the shooter. Appellant pled no contest to unlawfully and with malice aforethought
murdering Rodriguez, and that the murder was committed willfully, deliberately, and
with premeditation within the meaning of section 189. His admission to intentional,
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deliberate and premeditated murder establishes he acted with actual malice sufficient to
sustain the murder conviction under the law as amended.
Appellant argues People v. Curiel (2023) 15 Cal.5th 433 (Curiel), decided after
Romero, found that malice “is only one element” and that it does not “by itself establish
any valid theory of liability” and “standing alone, cover all of the required elements.”
(Id. at p. 463.) But the ruling in Curiel arises from the case’s unique factual and legal
posture and cannot be considered in a vacuum.
In Curiel, the victim, Cesar Tejada, and a group of his cohorts got into an
altercation with Curiel and Abraham Hernandez. When Tejada shoved Hernandez to the
ground, Hernandez pulled out a gun and fatally shot Tejada. (Id. at p. 442.) In the
instructions to the jury, the court identified Hernandez as the alleged perpetrator of the
murder, and instructed the jury on direct aiding and abetting, and on aiding and abetting
based on the doctrine of natural and probable consequences. (Id. at p. 446.) The court’s
natural and probable consequences instruction was as follows.
“ ‘To prove that the defendant is guilty of murder
under the theory of aiding and abetting [based on] natural and
probable consequences, the People must prove beyond a
reasonable doubt that [1] the defendant is guilty of disturbing
the peace or of carrying a concealed firearm by a gang
member; [2] during the commission of the crime of disturbing
the peace or of the crime of carrying a concealed firearm by a
gang member the crime of murder was committed; and [3]
under all the circumstances a reasonable person in the
defendant’s position would have known that the commission
of murder was a natural and probable consequence of the
commission of the crime of disturbing the peace or of the
crime of carrying a concealed firearm by a gang member.’ ”
(Curiel, supra, 15 Cal.5th at p. 446.)
The jury convicted Curiel of first degree murder (§ 187, subd. (a)) and found true
the gang-murder special-circumstance allegation (§ 190.2, subd. (a)(22)) and the criminal
street gang sentencing enhancement (§ 186.22, subd. (b)(1)). The jury also found true
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two firearm enhancements (§ 12022.53, subds. (d), (e)) and convicted Curiel of active
participation in a criminal street gang (§ 186.22, subd. (a)). (Curiel, supra, 15 Cal.5th at
p. 440.)
Following the passage of Senate Bill [No.] 1437, Curiel filed a petition for
resentencing. (Id. at p. 447.) The trial court found Curiel was ineligible due to the jury’s
true finding of the gang-murder special-circumstance allegation. The appellate court
reversed, and the California Supreme Court affirmed the appellate court’s judgment.
For Curiel to be ineligible for resentencing as a matter of law, the record of
conviction must show he could “ ‘not presently be convicted of murder or attempted
murder because of changes to [s]ection 188 or 189 made effective January 1, 2019,’….”
(Strong, supra, 13 Cal.5th 698, 708.) But because the conviction in Curiel predated
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th
522 (Clark), the natural and probable consequences instruction given to the jury created a
reasonable doubt as to whether the jury convicted Curiel based on a still legal theory,
such as direct aiding and abetting, or whether the jury relied upon the now defunct natural
and probable consequences doctrine to find him guilty. (Curiel, supra, 15 Cal.5th at
pp. 454–455, see also Strong, supra, 13 Cal.5th at pp. 717–718, concluding a pre-Banks
and Clark special-circumstance jury finding does not have preclusive effect in
resentencing proceedings under section 1172.6.)
The Supreme Court posited, “[S]uppose the jury in such a case made findings on
all of the other elements supporting felony murder under section 189 as amended,
including (1) the commission or attempted commission of a felony enumerated in that
statute and (2) the death of a person during the commission or attempted commission of
the enumerated felony. In that case, if the jury additionally found intent to kill, it would
‘ordinarily be dispositive’ because the jury’s findings would conclusively establish all of
the elements of felony murder under current law. [Citations.] Considered together, the
jury’s findings would completely refute a petitioner’s allegation that he or she could not
9.
currently be convicted of murder because of changes to sections 188 and 189.” (Curiel,
supra, 15 Cal.5th 433, 464.)
The Attorney General argued the jury’s findings covered all the elements of
murder under a theory of direct aiding and abetting and therefore preclude relief. (Curiel,
supra, 15 Cal.5th at p. 464.) However, utilizing the aforementioned framework the
Supreme Court concluded the jury’s verdict did not reflect all the factual findings
necessary to support a murder conviction under current law. (Id. at p. 465.)
The court found that the jury’s special circumstance finding conclusively showed
Curiel possessed an intent to kill. (Curiel, supra, 15 Cal.5th at p. 463.) But, to be guilty
of direct aiding and abetting, “ ‘the prosecution must show that the defendant aided or
encouraged the commission of the murder with knowledge of the unlawful purpose of the
perpetrator and with the intent or purpose of committing, encouraging, or facilitating its
commission.’ [Citation.] In addition, as noted, an aider and abettor may be liable for
murder under a theory of implied malice where the aider and abettor aids in the
commission of a life-endangering act, with ‘ “knowledge that the perpetrator intended to
commit the act, intent to aid the perpetrator in the commission of the act, knowledge that
the act is dangerous to human life, and acting in conscious disregard for human life.” ’ ”
(Id. at pp. 466–467.)
But “[b]ecause the jury was instructed on the natural and probable consequences
doctrine, the jury was required to find only that Curiel knew that Hernandez intended to
commit one of the underlying target offenses and that Curiel intended to aid him
in that offense, not murder. Nor was the jury required to find that the underlying target
offenses, themselves, were dangerous to human life.” (Curiel, supra, 15 Cal.5th at
p. 468.) What was critical was “not only an intent to kill but knowledge and intent
regarding the direct perpetrator’s homicidal or life-endangering acts.” (Id. at p. 469.)
Thus, “[a] finding of intent to kill does not, standing alone, cover all of the required
10.
elements. It does not itself show that a petitioner like Curiel is liable for murder under
any valid theory.” (Id. at p. 463.)3
This case was resolved by plea. There was no natural and probable consequences
aiding-and-abetting instruction, and nothing in the record of conviction indicates the case
was resolved based on that theory of liability. To the contrary, appellant pleaded no
contest to “unlawfully and with malice aforethought [murdering] Ramon Rodriguez”, and
that he did so “willfully, deliberately and with premeditation,” indicating appellant
harbored a specific intent to kill and the murder was committed with actual malice.
Because this is not a case involving jury instruction on the natural and probable
consequences doctrine or a jury verdict, the unique circumstances present in Curiel do
not apply, and the finding in Curiel does not change the conclusion this court reached in
Romero. Likewise, that appellant entered a West4 plea is irrelevant. “The absence of an
admission of guilt has no effect on the use of the resulting conviction as evidence in other
criminal actions.” (People v. Rauen (2011) 201 Cal.App.4th 421, 424.)
Appellant argues the plea in People v. Rivera (2021) 62 Cal.App.5th 217 (Rivera)
is similar to the plea in this case. The defendant in Rivera plead no contest to “ ‘willfully,
unlawfully[,] and with malice aforethought [murdering] [Baker] ... in violation of …
section 187(a), a felony ...’ ” (Id. p. 225.) The People stipulated the plea was for second
degree murder. (Ibid.) The appellate court found the defendant “made no admissions
related to the murder other than pleading no contest to the count as charged.” (Id. at
p. 234.) The court found no basis to infer that the defendant admitted to acting with
actual malice, but noted “[i]n some cases, the record may reveal that a defendant
3 The Supreme Court concluded, “[w]e have characterized this scenario—where a
defendant is liable for murder under the natural and probable consequences
doctrine, and acts with malice aforethought, but is not liable as a direct aider and
abettor—as ‘quite narrow’ and relevant only to a ‘very small set of cases.’ ”
(Curiel, supra, 15 Cal.5th at p. 470.)
4 People v. West (1970) 3 Cal.3d 595.
11.
admitted more than the elements of the offense charged, and such additional admissions
may preclude relief.…” (Id. at p. 234.)
Appellant’s admission that he acted “willfully, deliberately and with
premeditation,” separates his case from Rivera. This admission indicates appellant pled
not just to generic murder, or second-degree murder like in Rivera, but to first degree,
premeditated murder pursuant to sections 187 and 189. This additional admission
precludes relief under section 1172.6, because it indicates appellant committed the
murder with actual malice.5
DISPOSITION
The trial court’s May 19, 2025, order denying appellant’s petition for resentencing
pursuant to Penal Code section 1172.6, is affirmed.
SANDHU, J.
WE CONCUR:
Levy, Acting P. J.
DETJEN, J.
5 Appellant also argues this case is comparable to People v. Eynon (2021)
68 Cal.App.5th 967. To the extent that the case is comparable, we decline to follow
Eynon, as it predates this court’s decision in Romero.
12.