People v. Abad CA4/1

Filed 3/14/22 P. v. Abad CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079492

Plaintiff and Respondent,

v. (Super. Ct. No. FVI 1300181-2)

RUBEN ABAD,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Bernardino
County, Eric M. Nakata, Judge. Reversed and remanded with directions.
Eric S. Multhaup, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Julie L. Garland,
Assistant Attorneys General, Eric A. Swenson and Heather M. Clark, Deputy
Attorneys General for Plaintiff and Respondent.
Defendant Ruben Abad pleaded no contest to second degree murder
after this court reversed his first degree murder conviction with a
robbery/murder special circumstance (People v. Abad (Jun. 15, 2015,
D067449) [nonpub. opn.]). He appeals from an order denying his Penal
Code1 section 1170.95 petition for resentencing. Abad contends the trial
court erred by summarily denying his petition based on its own factual
determinations from the trial evidence and on this court’s statement in our
prior opinion in his matter that substantial evidence supported his murder
conviction and the special circumstance finding. He asks us to reverse the
order and remand with directions that the court issue an order to show cause
and hold an evidentiary hearing as required by section 1170.95.
The People concede the court erred when it denied Abad’s petition
before allowing his counsel to submit a brief. They also concede the court
inappropriately relied on this court’s holding that substantial evidence
supported Abad’s first degree murder conviction and special circumstance
finding, given Abad pleaded no contest to second degree murder and was not
convicted under a theory of felony murder. However, asking us to review the
court’s result and not its reasoning, they maintain any error was harmless
because (1) Abad’s no contest plea to second degree murder was as a direct
aider and abettor based on a malice theory and thus he is ineligible for relief
as a matter of law, and (2) after issuing its summary denial, the court
considered counsel’s brief and issued an addendum to its initial ruling.
We conclude Abad’s no contest plea to second degree murder as an
aider and abettor did not necessarily admit he committed the crime with
malice aforethought. Likewise, Abad’s stipulation to the trial and
preliminary hearing transcripts or police reports as the factual basis for his
plea did not categorically preclude him from showing he could make out a
prima facie case for relief under section 1170.95. Because the court erred by
concluding otherwise, we reverse and remand for the court to issue an order
to show cause and conduct further proceedings under section 1170.95.

1 Undesignated statutory references are to the Penal Code.
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 FACTUAL BACKGROUND
Abad broadly identified the trial evidence and police reports as part of
the factual basis for his plea. We thus take the facts from our prior opinion,
People v. Abad, supra, D067449.
A. The Prosecution Case
1. The 1989 Investigation
In March 1989, 56-year-old Santos was living in La Puente, California.
On March 19 or 20, he called his sister to tell her he was coming to Las Vegas
to live with her and seek work. On the morning of March 21, a pedestrian
walking along Stoddard Wells Road off of Interstate 15 near Victorville (in
San Bernardino County) found Santos’s dead body off the side of the road in
the desert. The pedestrian flagged down a passing car and the occupants
called 911. While she waited, the pedestrian saw a knife on the ground on
the other side of the road near marks that looked like people had been
scuffling. She also saw what appeared to be drag marks leading from the
knife to the body.
The San Bernardino County Sheriff’s Department detective assigned to
collect reports and evidence described the crime scene as a remote area on the
way to a dumpsite, with no residences or businesses nearby, approximately
two miles from the Stoddard Wells Road interchange with Interstate 15. No
other roads were visible. The detective saw the knife, the scuffle marks, and
the drag marks. He also saw blood near the knife and observed tire
impressions on the east side of the road that continued on to the west side of
the road, indicating to him that a vehicle made a U-turn leaving southbound
on Stoddard Wells Road.
Santos’s body was in some bushes. The detective saw blood and a
clumping of dirt on the right side of Santos’s body. Santos’s pants and

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underwear were off, but he was wearing laced-up shoes, socks, and a
sweatshirt. There was foliage on Santos’s sweatshirt consistent with being
dragged through the desert. Santos’s underwear were between his legs and
his pants were about six feet from his body. There was no wallet in the
pants.
At about 11:15 p.m. on March 21, the California Highway Patrol (CHP)
found Santos’s car abandoned on the shoulder of Highway 101 near North
Hollywood in Los Angeles County. A records check indicated the car was
involved in Santos’s murder investigation, so CHP had it towed to a secure
tow yard. When the detective was notified the next day that the car had been
found, he had it brought to San Bernardino to be processed.
The driver’s window was halfway down. The dashboard and windshield
were broken and there was a shoeprint on the windshield. There was blood
in the front passenger side of the car. There was a beer can in a caddy in
front of the front seat, a soda can on the driver’s side between the seat and
the door, and an additional soda can and bottle under the driver’s seat. The
blood tracings were sampled and the car and its contents were processed for
fingerprints.
The knife and sheath were also processed for latent fingerprints and
DNA. No fingerprints were found, but blood on the knife was swabbed for
DNA. Because of limitations in searching fingerprint databases in 1989,
sheriff’s personnel did not identify any suspects in Santos’s murder.
On March 23, 1989, a forensic pathologist with the San Bernardino
County Coroner’s Office performed an autopsy on Santos. Santos was five
feet, seven inches tall, and weighed 164 pounds. He had three stab wounds:
two on the right lower chest and one on the side of his chest. The wound
patterns were consistent with a single-edged knife and were consistent with

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the size of the knife recovered from the crime scene. Santos’s sweatshirt had
caked blood and mud on the lower right front and had two tears in the area of
his stab wounds, indicating the sweatshirt had ridden up and exposed his
lower chest for the third stab wound. The pathologist identified the cause of
Santos’s death as stab wounds to his liver, which was enlarged and exhibited
signs of chronic alcoholic liver disease and cirrhosis. Santos likely would
have bled to death within 10 to 30 minutes, faster than someone with a
healthy liver. Santos had a blood alcohol level of 0.28 percent, which would
have slowed his reaction time. He had no defensive wounds.
The pathologist opined the marks in the dirt and the blood spatter at
the crime scene were consistent with a struggle and the stabbing of Santos at
that location. Santos also had postmortem abrasions across his lower back
and buttocks consistent with being dragged.
On March 28, 1989, the detective learned that an employee at a
campground near the Stoddard Wells Road/Interstate 15 interchange
recovered a wallet with an identification card and other paperwork belonging
to Santos. There was no cash in the wallet. Detectives interviewed the
campground’s assistant manager, N.A., who reported that the wallet had
been found seven to 10 days earlier.
The detectives showed N.A. a photograph of Santos. She told them he
had been at the campground about a week or two earlier with two other men
and that they bought sodas or beer. N.A. described Santos as “fairly well
dressed and clean-looking,” and the other two men as younger and “quite
ratty and transient-looking.” She could not understand why they were
together.
2. The 2012 Investigation

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 In 2012, detectives with the San Bernardino County Sheriff’s homicide
detail were investigating Santos’s unsolved murder as a “cold case.” Physical
evidence from the crime scene led them to defendants. Abad’s fingerprints
and a palm print were on the exterior of the car windows in a position
consistent with Abad sitting inside the car with the windows rolled down.
Several of Solis’s prints were also found inside the car, including one from the
soda can that was between the driver’s door and driver’s seat. DNA analysis
of blood specks found both inside the car (under the dashboard) and outside
the car (the rear passenger door) matched Solis. Specks of Solis’s blood were
also found on Santos’s sweatshirt.
a) Abad’s Interview
The detectives went to Abad’s home in Bakersfield. He agreed to give

an audiotaped interview at the local police station. 2
Abad was born in 1964, which would have put his age at 24 in March
1989. He said he was from Santa Maria, California and lived there until
2005 or 2006. Abad denied ever being in La Puente or on Interstate 15
heading toward Las Vegas in the late 1980’s or early 1990’s. He denied ever
hitchhiking and, when the detectives showed him a photo of Santos’s car,
denied ever getting a ride in it. When detectives showed him a photo of Solis
and stated his name, Abad said he was not sure if he recognized the photo
and had only “heard of” Anthony and did not know Anthony’s last name. One
detective, however, noted that when he showed the photo, Abad’s “shoulders
and his body kind of stiffen[ed],” which was the first instance in which there
was a “change in his body language.” The detectives then showed Abad three
photos of randomly selected Hispanic males to gauge his reaction. Abad
slowly relaxed and resumed his original posture. Then the detectives showed

2 Abad did not testify at trial, but the jury heard his interview.
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him a photo of Santos and asked if he knew someone by that name. Abad
said he did not recognize the photo or the name, but, once again, his posture
changed. Abad relaxed again after a few minutes.
The detectives told Abad there was physical evidence tying him to
Santos’s car, and they accused him of stealing the car with Solis. Abad
denied ever stealing any car, but offered no explanation for why physical
evidence would indicate he had been in Santos’s car. The detectives then told
Abad they were investigating the murder of the car’s owner and that they
had evidence placing him in the car around the time of the murder. Abad
asked to leave the interview. The interview ended and detectives took
fingerprint and DNA samples from Abad pursuant to a search warrant.
b) Solis’s Interview
The detectives interviewed Solis at a state prison in Chino, where he
was serving a life sentence for a murder he committed in 1997 for which he
was convicted in 2000. Solis initially denied any knowledge of the crime and
claimed not to recognize Santos or Abad in photos the detectives showed him.
Solis told the detectives they “really couldn’t do a whole lot to [him]” because
he “had already been doing time.” However, when the detectives alluded to
the death penalty, Solis relented and told them that he was present when
Abad killed Santos without Solis’s participation.
B. Solis’s Defense Case
Solis testified at trial. He lived in Lompoc, California in 1989. In early
1989, he spent about two months in a residential group treatment home in
Baldwin Park (in Los Angeles County), where he first met Abad. Abad
arrived later, and their stays overlapped by about two or three weeks. They
discovered they were both from the same general area, and Solis knew of
Abad’s brothers, but not Abad. Sometime in March 1989, Solis decided to

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leave the home and return to Lompoc. Abad decided to leave with Solis and
travel together back to the Lompoc/Santa Maria area. They walked from the
Baldwin Park group home to a bus stop in neighboring La Puente, intending
to catch a local bus to a Greyhound station in El Monte. They drank beer as
they walked. Around 11:30 a.m., Santos drove by the bus stop in his car,
circled back around, and offered defendants a ride. Defendants accepted.
The three men stopped at a liquor store, bought beer and wine, and
then just “cruised around,” “aimlessly.” Around 2:00 p.m., when Santos
decided he was too intoxicated to drive, Solis started driving, with Santos in
the front passenger seat and Abad in the rear. Santos directed Solis to the
freeway and passed out sometime later.
As Solis drove Santos’s car north on Interstate 15 toward Las Vegas in
the Victorville area, Santos woke up, said something to the effect of “what the
F is going on?” and hit Solis on the right side of his face with a wine bottle.
Solis began bleeding. As he attempted to block further blows by Santos, Solis
exited the freeway to avoid crashing. As Solis was doing so, Abad reached
over from the back seat and stabbed Santos twice. Solis was not previously
aware that Abad had a knife.
After Solis stopped the car, Abad and Santos got out and fought. Solis
saw Abad stab Santos a third time. As Abad and Santos moved toward the
front of the car, Solis waited behind the rear passenger side to avoid being
caught up in the fight. Solis lost sight of Abad and Santos and returned to
the front passenger seat of the car; he was in no condition to drive because
his head was still bleeding from being hit with the wine bottle.
Abad returned to the car a few minutes later without Santos, and he
and Solis drove off toward Los Angeles. Worried how he would explain his
bleeding if stopped by police, Solis intentionally broke the dash board by

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kicking it and put his blood on it. As they drove through Los Angeles on the
way to the Lompoc/Santa Maria area, Santos’s car broke down on the
freeway. At Abad’s direction, defendants wiped their fingerprints from the
car before abandoning it. They walked to a Greyhound station and took a bus
to the Lompoc/Santa Maria area, where they parted ways and never spoke
again.
Solis denied participating in the assault on Santos or in dragging the
body away. He did not intend for Santos to be robbed or killed, and did not
even know for certain whether Santos was dead when he was abandoned in
the desert. Solis denied taking Santos’s wallet or even knowing that he had
one. He also denied ever going to the campground near the Stoddard Wells
Road/Interstate 15 interchange. Solis admitted he initially lied to the
detectives who interviewed him. He further admitted to a felony conviction
in 1990 for robbery and assault, two felony convictions in 1992 for theft, and
one felony conviction in 2000 for stabbing and theft.
C. The Prosecution’s Rebuttal Case
M.C. testified that in 1989 he was a minister working with a network of
churches that operated residential facilities in California and that Solis was a
resident of the La Puente home in 1989. Solis left the home with another
resident.
Pastor E.M. testified he was also involved with the La Puente group
home. He recognized Solis as having resided at the home for less than a
month. After Solis left the home, there were reports of property missing.
Solis left the home with a person from the Santa Maria area. A few days
after Solis left, he called E.M. and asked if he and the person he left with
could return to the home. E.M. said no.

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 One of the detectives who interviewed Solis testified that during the
interview, Solis was the first to mention that the cause of Santos’s death was
stabbing.
PROCEDURAL BACKGROUND
In 2013, a jury convicted Abad and Solis of first degree murder and
found true a robbery-murder special circumstance. This court later reversed
Abad’s conviction based on prejudicial evidentiary error (People v. Abad,
supra, D067449).
In 2016, Abad pleaded no contest to second degree murder, writing on
the form as the factual basis for the plea that he did so “under [a] theory of
aider and abettor.” The following colloquy occurred at the plea hearing, at
which he also identified as the factual basis for his plea the trial and
preliminary hearing evidence as well as police reports:
“The Court: Mr. Abad, to a violation of Penal Code section
187[,subdivision] (a), second degree murder . . . murder in the second degree,
as a felony and as a strike, how do you plead?
“Defendant Abad: No contest.
“The Court: Counsel join?
“[Abad’s counsel]: Join.
“The Court: Acceptable to the People?
“[The prosecutor]: Yes.
“The Court: Factual basis to this case.
“[Abad’s counsel]: Pursuant to our plea agreement as an aider and
abettor and based on the previous documents, we stipulate.
“[The prosecutor]: Previous documents being the trial transcript?
“[Abad’s counsel]: Trial transcripts, the preliminary hearings, two of
them, and the police reports.

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 “[The prosecutor]: Stipulate.
“The Court: Thank you.”
The trial court sentenced Abad to 15 years to life in prison.
In January 2020, Abad filed a form petition for resentencing under
section 1170.95. By checking boxes, he asserted a complaint, information or
indictment was filed against him allowing the prosecution to proceed under a
theory of felony murder or murder under the natural and probable
consequences doctrine, he was convicted at trial of first or second degree
murder pursuant to the felony murder rule or the natural and probable
consequences doctrine, and he could not now be convicted of first or second

degree murder because of changes made to sections 188 and 189.3 Further,
Abad asserted he was not the actual killer, did not aid or abet the actual
killer with intent to kill, was not a major participant in the felony nor acted
with reckless indifference to human life, and the victim was not a peace
officer in the performance of his or her duties. Abad requested appointment
of counsel.
The People responded in part that Abad failed to set forth a prima facie
case for relief, asking the court to take judicial notice of this court’s June
2015 opinion (People v. Abad, supra, D067449), the information, and the

records in the superior court case.4 Abad was appointed counsel, and the
court continued the hearing on his petition to September 17, 2020.

3 Abad inexplicably did not place a mark on the form at paragraph 2b.,
which reads: “I pled guilty or no contest to 1st or 2nd degree murder in lieu
of going to trial because I believed I could have been convicted of 1st or 2nd
degree murder at trial pursuant to the felony murder rule or the natural and
probable consequences doctrine.”

4 We previously granted the People’s unopposed request for judicial
notice of the record in case No. D067449.
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 Before the continued hearing took place, however, the trial court
summarily denied Abad’s petition on grounds he failed to establish a prima
facie case for section 1170.95 relief. The court’s memorandum of decision
states: “[Abad] was originally convicted of [first] degree murder and robbery
and the special circumstance of robbery-murder was found true. On remand
of the Court of Appeal, [Abad] pleaded to [second] degree murder on an aider
and abettor theory. [¶] In this case, [Abad] was a major participant in the
felony and acted with reckless indifference to human life during the course of
the crimes. [¶] As the Court of Appeal . . . stated, ‘We conclude substantial
evidence supports defendant’s convictions for felony murder and the true
finding on the robbery-murder special circumstance’ . . . . Moreover, the same
appellate court stated: ‘[S]ubstantial evidence supports Abad’s murder
conviction.’ . . . [¶] [Abad] has failed to establish a prima facie case for
resentencing and this Court denies an [order to show cause] for failure to
establish said prima facie case.” (Some capitalization omitted.)
On September 10, 2020, Abad moved to set aside that decision. He
argued his petition was sufficient to survive the prima facie showing, he had
not had an opportunity to be heard, and he asked the court to set the matter
for a hearing. Thereafter, the court issued an addendum to its ruling,
observing it had presided over the trial and Abad’s plea, and reiterating its

12
ruling that Abad “has failed to make a prima facie case for resentencing.” 5
Abad filed this appeal.
DISCUSSION
I. Amendments to the Felony Murder Rule and Natural and Probable
Consequences Doctrine
Effective January 1, 2019, the Legislature amended 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.” (Sen. Bill No. 1437; Stats. 2018, ch. 1015, § 1, subd. (f); see
People v. Lewis (2021) 11 Cal.5th 952, 959; People v. Gentile (2020) 10 Cal.5th

830, 842.)6 It redefined “malice” in section 188 to add a requirement that all
principals to a murder “shall act with malice aforethought” and that “[m]alice

5 In full, the court’s addendum states: “On September 10, 2020, [Abad],
through his counsel . . . filed a ‘Notice of Motion and Motion to Set Aside the
Memorandum Decision and Associated Rulings.” Nowhere in . . . section
1170.95 does the statute allow this. Moreover, [counsel’s] declaration is NOT
under the penalty of perjury. [¶] This Court was the trial court and the
Court who took the plea. This Court heard evidence and arguments at trial.
Even if [counsel] had filed his brief timely, his brief fails to establish a prima
facie case, thus a hearing is not required. [¶] This Court, however, read and
considered the brief. The conclusion as stated in the Memorandum of
Decision remains: ‘[Abad] has failed to make a prima facie case for
resentencing.’ [¶] If [Abad] makes a prima facie showing that he . . . is
entitled to relief the Court shall issue an order to show cause . . . . [¶] A
hearing is not merited and is denied.”

6 Effective January 1, 2022, the Legislature amended section 1170.95 to
allow a defendant to seek resentencing under its provisions for attempted
murder and manslaughter convictions. (Sen. Bill No. 755; Stats. 2021, ch.
551, § 2.) It made other amendments to the law as we explain below.
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shall not be imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3), Stats. 2018, ch. 1015, §§ 2-3; Lewis, at p. 957.)
It also narrowed the classes of persons liable for felony murder under
section 189. Now, “[a] participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a) [including robbery] 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).)
In addition to these amendments, the Legislature put in place a
procedure for defendants convicted of murder to seek resentencing if they
believe they could not currently be convicted of that crime under the
amended provisions of sections 188 and 189. (Sen. Bill No. 1437, § 4
[enacting section 1170.95]; People v. Gentile, supra, 10 Cal.5th at p. 843.)
Thus, section 1170.95 allows those “convicted of felony murder or murder
under a natural and probable consequences theory . . . [to] file a petition with
the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts
. . . .” (§ 1170.95, subd. (a).)
The defendant’s petition must aver that (1) an accusatory pleading was
filed against the petitioner allowing prosecution under the felony-murder rule
or the natural and probable consequences doctrine (§ 1170.95, subd. (a)(1));
(2) the petitioner was convicted of first or second degree murder following a
trial, or pleaded guilty to first or second degree murder in lieu of a trial at

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which he or she could have been so convicted (§ 1170.95, subd. (a)(2)); and (3)
the petitioner could not today be convicted of first or second degree murder
because of the 2019 amendments to sections 188 and 189 (§ 1170.95, subd.
(a)(3)). (§ 1170.95, subd. (b)(1); People v. Lewis, supra, 11 Cal.5th at pp. 959-
960.)
If the petition complies with these requirements, the court must
appoint counsel if defendant has requested it and it “shall hold a hearing to
determine whether the petitioner has made a prima facie case for relief.”
(§ 1170.95, subd. (c); People v. Lewis, supra, 11 Cal.5th at pp. 960, 962-963.)
If the court finds the defendant has made a prima facie showing, it issues an
order to show cause and then must hold a hearing to determine whether the
defendant is entitled to relief. (§ 1170.95, subd. (d)(1); Lewis, at p. 960.) At
this hearing, the prosecution bears the burden of proof beyond a reasonable
doubt to show the defendant is ineligible for resentencing. (§ 1170.95, subd.
(d)(3).) The court acts as an independent factfinder: it must “determine on
an individualized basis, after considering any new or additional evidence

15
offered by the parties, whether the defendant is entitled to relief.” (People v.

Gentile, supra, 10 Cal.5th at p. 855.)7
Where the analysis of the trial court’s ruling turns on an interpretation
of section 1170.95 and the lower court’s authority to deny relief at the prima
facie stage by engaging in judicial factfinding or the weighing of evidence, we
review the ruling de novo. (See People v. Duchine (2021) 60 Cal.App.5th 798,
811.)
II. Contentions
Abad’s no contest plea to second degree murder forecloses any
conclusion that he could be convicted of felony murder. Indeed, as the People

7 In 2021, the Legislature amended section 1170.95, subdivision (d)(3) to
require the prosecution to prove beyond a reasonable doubt at the evidentiary
hearing that the petitioner “is guilty of murder” under current law, and
further provides that “[a] finding that there is substantial evidence to support
a conviction for murder” is insufficient to meet this standard. (Sen. Bill No.
775 (2020-2021 Reg. Sess.) § 2.) It added new text governing the
consideration of evidence at a section 1170.95, subdivision (d)(3) evidentiary
hearing: “The admission of evidence in the 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 Section 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.” (§ 1170.95, subd. (d)(3).) We do not address the split in
authority as to what legal standard applies to this hearing. (See People v.
Duke (2020) 55 Cal.App.5th 113, 123 (review granted Jan. 13, 2021, S265309)
[applying “essentially” a substantial evidence standard]; compare People v.
Fortman (2021) 64 Cal.App.5th 217, 226, review granted July 21, 2021,
S269228 [holding the People are required to prove to the trial court beyond a
reasonable doubt that the petitioner is guilty on a now-valid theory of
murder].)
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point out, he asserts “[t]here is no predicate felony involved in this

conviction.” 8 Abad argues, however, that the “record of conviction
is completely silent as to the acts and intent on which the plea to second
[ ]degree murder is based, apart from the general statement that there was a
‘factual basis’ for the plea based on ‘trial transcripts, the preliminary
hearings, two of them, and the police reports.’ ” Abad acknowledges that his
plea agreement specified he was convicted on an aider and abettor theory,
but he maintains “the record of conviction does not contain any indisputable
finding that [he] harbored express or implied malice in the course of the
offense” and “[t]he no contest plea is not an admission as to either the actus
reus of actually killing Santos or the mens rea of harboring express or
implied malice.” He compares his circumstances to those in People v. Rivera
(2021) 62 Cal.App.5th 217, review dismissed and cause remanded January
19, 2022, S268405.
The People respond that the court did not err. They point out the
prosecution proceeded under theories of first degree premeditated murder
and first degree felony murder at trial, and the jury was not instructed on
either the natural and probable consequences doctrine or second degree
felony murder. They argue: “Since no theory of vicarious liability could have

8 Thus, we need not address the issue—currently on review (People v.
Strong (Dec. 18, 2020, C091162) [nonpub. opn.], review granted Mar. 10,
2021, S266606)—of whether a felony murder special circumstance finding
predating People v. Banks (2015) 61 Cal.5th 788 and People v. Clark (2016)
63 Cal.4th 522 precludes a defendant from making a prima facie showing of
eligibility for resentencing relief. (Compare People v. Gomez (2020) 52
Cal.App.5th 1, 17, review granted Oct. 14, 2020, S264033 [remedy to
challenge a special circumstance finding is a petition for writ of habeas
corpus, not a section 1170.95 petition for resentencing], with People v. Smith
(2020) 49 Cal.App.5th 85, 94, review granted July 22, 2020, S262835 [special
circumstance finding is not a categorical bar to resentencing relief].)
17
supported [Abad’s] conviction under these circumstances, [Abad’s] guilt could
only have been based on the proposition that he directly aided and abetted a
killing with malice.” According to the People, “[b]y pleading no contest to
second[ ]degree murder under circumstances where the prosecution was not
proceeding under the natural and probable consequences doctrine or a second
degree felony murder theory, [Abad] admitted he acted with malice
aforethought when he pleaded guilty [sic] to second[ ]degree murder as a
direct aider and abettor.” They further maintain “[t]he absence of instruction
and argument on a natural and probable consequences theory demonstrates
that [Abad] was, at minimum, a direct aider and abettor, and thus ineligible
for relief.” The People ask us to hold Abad is ineligible for relief under
section 1170.95 as a matter of law, and affirm the court’s ruling on that
ground based on its result, not its reasoning.
III. Abad’s Petition Made Out a Prima Facie Showing of Entitlement to Relief
In determining whether a defendant has made a prima facie showing
on a section 1170.95 petition, the trial court may examine the record of
conviction “to distinguish petitions with potential merit from those that are
clearly meritless.” (People v. Lewis, supra, 11 Cal.5th at p. 971; People v.
Mancilla (2021) 67 Cal.App.5th 854, 863.) But “the prima facie inquiry under
[section 1170.95,] subdivision (c) is limited. Like the analogous prima facie
inquiry in habeas corpus proceedings, ‘ “the court takes petitioner’s factual
allegations as true and makes a preliminary assessment regarding whether
the petitioner would be entitled to relief if his or her factual allegations were
proved. If so, the court must issue an order to show cause.” ’ [Citations.] ‘[A]
court should not reject the petitioner’s factual allegations on credibility
grounds without first conducting an evidentiary hearing.’ [Citations.]
‘However, if the record, including the court’s own documents, “contain[s] facts

18
refuting the allegations made in the petition,” then “the court is justified in
making a credibility determination adverse to the petitioner.” ’ ” (Lewis, at p.

971.)9 Though appellate opinions are part of the record of conviction, their
“probative value . . . is case-specific” and they “ ‘might not supply all
answers.’ ” (Id. at p. 972.) In “reviewing any part of the record of conviction
at this preliminary juncture, a trial court should not engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion.’ ” (Ibid.;
People v. Duchine, supra, 60 Cal.App.5th at p. 815 [“the time for weighing
and balancing and making findings on the ultimate issues arises at the
evidentiary hearing stage rather than the prima facie stage, at least where
the record is not dispositive on the factual issues”].) The “ ‘prima facie bar
was intentionally and correctly set very low.’ ” (Lewis, at p. 972.)
Applying these standards, we agree that the trial court erred by
summarily denying Abad’s petition without issuing an order to show cause.
The question is whether the superior court correctly ruled—without engaging
in impermissible factfinding, weighing of evidence or exercising discretion
(People v. Lewis, supra, 11 Cal.5th at p. 972)—that Abad failed to make a
prima facie showing that he “could not be convicted of . . . second degree
murder” because of the amendments to section 188. (§ 1170.95, subd. (a)(3).)
Stated another way, we decide whether Abad’s record of conviction—his plea
colloquy stating the factual basis as the trial and preliminary hearing

9 To “refute” means “to prove wrong by argument or evidence: show to be
false or erroneous.” (Merriam-Webster’s Dict. Online [as of March 14, 2022].) The California
Supreme Court’s use of this phrase means it is not enough to say the record
contains substantial evidence to support a conviction under a still-valid
murder theory. Such a finding indicates the record contains enough evidence
to support a murder conviction, but it does not refute a claim that a
defendant could not be convicted under current law or show as a matter of
law that the claim is false.
19
transcripts as well as police reports—conclusively established Abad was
ineligible for relief. (Cf. People v. Duchine, supra, 60 Cal.App.5th at pp. 815,
816 [in order to deny section 1170.95 petition at prima facie stage, record of
conviction must conclusively establish the defendant “engaged in the
requisite acts and had the requisite intent” to be guilty of murder under the
new law; order denying section 1170.95 petition relief was reversed where
lower court engaged in “judicial fact-finding on issues not conclusively
resolved by the record of conviction”].) As we have summarized above, apart
from acting as an aider and abettor, Abad’s plea form did not further specify
any particular facts, and the prosecutor did not summarize any relevant facts
at the plea hearing.
Second degree murder is the unlawful killing of a human being with

malice aforethought 10 but without the additional elements, such as
willfulness, premeditation, and deliberation, that would support a first
degree murder conviction. (§§ 187, 189; People v. Knoller (2007) 41 Cal.4th
139, 151.) Under amended section 188, a principal must personally act with
malice aforethought in order to be convicted of murder, making no exception
for accomplices or second degree murder. (People v. Gentile, supra, 10
Cal.5th at p. 846, citing § 188, subd. (a)(3).) “By its terms, section 188(a)(3)
permits a second degree murder conviction only if the prosecution can prove
the defendant acted with the accompanying mental state of mind of malice

10 “Malice can be express or implied. It is express when there is a
manifest intent to kill [citation]; it is implied if someone kills with “no
considerable provocation . . . or when the circumstances attending the killing
show an abandoned and malignant heart” [citation]. When a person directly
perpetrates a killing, it is the perpetrator who must possess such malice.
[Citations.] Similarly, when a person directly aids and abets a murder, the
aider and abettor must possess malice aforethought.” (People v. Gentile,
supra, 10 Cal.5th at p. 844.)
20
aforethought. The prosecution cannot ‘impute[ ] [malice] to a person based
solely on his or her participation in a crime.’ ” (Ibid.) Section 1170.95
expressly permits a defendant convicted of second degree murder like Abad to
avail himself of the resentencing petition procedure. (Id. at p. 847.)
But at the time of Abad’s no contest plea, “ ‘the natural and probable
consequences doctrine was an exception to the actual malice requirement’—
i.e., the requirement of either express or implied malice.” (People v. Rivera,
supra, 62 Cal.App.5th at p. 231.) That is, “when a person aided and abetted a
nonhomicide crime that then resulted in a murder, the natural and probable
consequences doctrine allowed him or her to be convicted of murder without
personally possessing malice aforethought. So long as the direct perpetrator
possessed malice, and the killing was a natural and probable consequence of
the crime the defendant aided and abetted, it did not matter whether the
defendant intended to kill or acted with conscious disregard for human life.”
(People v. Gentile, supra, 10 Cal.5th at p. 845.) The law thus allowed a
person to be convicted of second degree murder without acting with malice
aforethought and malice could be imputed to a defendant under the natural

and probable consequences theory. (Id. at p. 847.)11

11 Rivera explains the difference between the natural and probable
consequence doctrine and the implied malice concept of natural and probable
consequences: “[I]mplied malice also incorporates the idea of ‘natural and
probable consequences,’ but the two concepts are distinct. Whereas implied
malice is based on ‘the “natural and probable consequences” of a defendant’s
own act,’ the natural and probable consequences doctrine was ‘a theory of
vicarious liability under which “[a]n aider and abettor [was] guilty not only of
the intended, or target, crime but also of any other crime a principal in the
target crime actually commit[ted] (the nontarget crime)” ’—including
murder—‘ “that [was] a natural and probable consequence of the target
crime.” ’ [Citation.] ‘Because a nontarget murder “ ‘[was] unintended, the
mens rea of the aider and abettor with respect to that offense [was] irrelevant
and culpability [was] imposed simply because a reasonable person could have
21
 Given the state of the law at the time of Abad’s no contest plea to
second degree murder, that plea did not admit he acted with express or
implied malice that would render him ineligible for section 1170.95 relief.
(Accord, People v. Rivera, supra, 62 Cal.App.5th at pp. 224, 235; People v.
Davenport (2021) 71 Cal.App.5th 476, 484 [no contest plea to second degree
murder and personal use of firearm did not bar relief as a matter of law,
where defendant did not stipulate to the “exact factual basis for the plea” and
no evidence at preliminary hearing conclusively refuted the allegation that
his conviction rested on prohibited vicarious liability theories].) Abad’s no
contest plea “constituted an admission to the elements of [second degree
murder] only, and not to any additional aggravating circumstances.” (People
v. French (2008) 43 Cal.4th 36, 50; but see People v. Sample (2011) 200
Cal.App.4th 1253, 1264, fn. 9 [French’s holding means issue of admissions
must be determined on a case-by-case basis].) Though the factual basis for a
plea may be established by counsel’s stipulation to particular documents such
as preliminary hearing transcripts and police reports (French, at pp. 50-51;
People v. Holmes (2004) 32 Cal.4th 432, 442), “[a] defendant is not required to
personally admit the truth of the factual basis of the plea . . . .” (French, at p.
50.) Absent an indication that a defendant admitted the truth of particular
facts, the stipulation to a factual basis for the plea does not “constitute[ ] a
binding admission for all purposes.” (Id. at p. 52; Rivera, supra, 62
Cal.App.5th at p. 235.)
Nor did Abad’s admission to the offense under an “aider and abettor
theory” preclude relief. The California Supreme Court in Gentile explained:
“Aiding and abetting is not a separate offense but a form of derivative

foreseen the commission of the [murder].’ ” ’ ” (People v. Rivera, supra, 62
Cal.App.5th at pp. 231-232.)

22
liability for the underlying crime. [Citation.] Our law recognizes two forms
of liability for aiders and abettors. [Citation.] First, under direct aiding and
abetting principles, an accomplice is guilty of an offense perpetrated by
another if the accomplice aids the commission of that offense with ‘knowledge
of the direct perpetrator’s unlawful intent and [with] an intent to assist in
achieving those unlawful ends.’ [Citation.] [¶] Second, under the natural
and probable consequences doctrine, an accomplice is guilty not only of the
offense he or she directly aided or abetted (i.e., the target offense), but also of
any other offense committed by the direct perpetrator that was the ‘natural
and probable consequence’ of the crime the accomplice aided and abetted (i.e.,
the nontarget offense).” (People v. Gentile, supra, 10 Cal.5th at p. 843.)
“Unlike direct aiding and abetting liability, culpability under the natural and
probable consequences theory does not require an accomplice to share the
direct perpetrator’s intent. Instead, ‘[a]ider and abettor culpability under the
natural and probable consequences doctrine is vicarious in nature’ and ‘ “is
not premised upon the intention of the aider and abettor to commit the
nontarget offense because the nontarget offense” ’ may not be intended at
all.” (Id. at p. 844.)
Though a defendant convicted of murder for directly aiding and
abetting that offense is ineligible for resentencing under section 1170.95
because that defendant has the requisite mental state (People v. Offley (2020)
48 Cal.App.5th 588, 595-596), here, Abad’s plea did not admit any particular
mental state, or facts establishing indisputably that he was a “direct” aider
and abettor to Santos’s murder. And the evidence underlying the factual
basis for his plea did not indisputably establish he was only guilty as a direct
aider and abettor. The case for Abad acting as a direct aider and abettor to
murder is necessarily dependent on the credibility of Abad’s codefendant

23
Solis. Under the circumstances, the trial court could not, without engaging in
factfinding or exercising its discretion to decide how the evidence reflected on
Abad’s mental state, rule out the possibility that Abad could be guilty of
second degree murder on the theory that he aided and abetted Solis’s robbery
of Santos, whose killing occurred during the commission of that offense.
Because the record of conviction does not definitively refute the allegations of
Abad’s petition, the trial court was required to issue an order to show cause.
(§ 1170.95, subd. (c).)
The People’s arguments do not convince us otherwise. They assert
based on People v. Daniel (2020) 57 Cal.App.5th 666, review granted
February 24, 2021, S266336, review dismissed December 1, 2021, that if jury
instructions indicate a jury was not instructed on either the natural and
probable consequences doctrine or on the felony murder doctrine, a section
1170.95 petition must be denied without issuance of an order to show cause.
It is true the jury at Abad’s prior trial was not specifically instructed on

accomplice liability under the natural and probable consequences doctrine.12
Though jury instructions are part of the record of conviction and they are
reflected in the trial transcripts, ultimately the law given to the jury during

12 The court did somewhat vaguely instruct the jury that “[u]nder some
specific circumstances, if the evidence establishes aiding and abetting of one
crime, a person may also be found guilty of other crimes that occurred during
the commission of the first crime.” The prosecutor did not distinguish
between the two defendants during closing arguments: “[Santos] is a 56-
year-old man. He is drunk. He is passed out. They could have both taken
him. They could have thrown him into the desert. They didn’t have to stab
him. They could have just taken his car if they wanted to, but they didn’t.
They chose a weapon. They chose to use that weapon in such a way that
caused Mr. Santos’[s] death.” Later, the prosecutor argued, “We have them
leaving the road going two miles off the freeway into a deserted area where
there’s no homes, nothing out there. And what do they do? They rob and kill
this 56-year-old man who is drunk.”
24
Abad’s trial is not dispositive of the question here, where we overturned his
convictions following that trial and Abad thereafter entered a no contest plea.
Abad’s no contest plea to second degree murder as an aider and abettor under
the trial transcripts, preliminary hearing transcripts, and police reports
necessarily required the court to consider and weigh all that evidence, which
turned on the credibility of Abad’s codefendant Solis, to determine the exact
nature of Abad’s conduct. Such evidentiary evaluation is not permitted in
deciding whether Abad presented a prima facie showing.
The People also seek to distinguish People v. Rivera, supra, 62
Cal.App.5th 217, in which the defendant pleaded no contest to second degree
murder, stipulating to the grand jury transcript as the factual basis for his
plea. (Id. at p. 223.) The prosecutor did not recite any particular facts at the
plea hearing. (Id. at p. 226, fn. 7.) The trial court ruled Rivera’s plea to
second degree murder was “with malice” and thus precluded eligibility for
resentencing under section 1170.95 as a matter of law. (Id. at p. 232.) The
Court of Appeal reversed. (Id. at p. 224.) There, the indictment alleged that
the defendant “ ‘did willfully, unlawfully[,] and with malice aforethought
murder . . . [the victim]’ ” and did so by means of lying in wait as a special
circumstance. (Id. at p. 233.) But the appellate court held those generic
allegations did not limit the People to prosecuting Rivera on any particular
theory, and the indictment allowed the prosecutor to proceed on any theory of
murder. Further, “where, as here, a defendant ultimately enters a plea to
second degree murder, the allegation of a special circumstance requiring an
intent to kill does not preclude prosecution based on the natural and probable
consequences doctrine.” (Id. at p. 234.) And his plea did not admit being the
actual killer or to acting with actual malice. (Id. at p. 235.) The appellate
court observed that because a plea does not require a defendant to admit the

25
truth of particular facts, Rivera’s plea did not admit the truth of any evidence
presented to the grand jury. (Ibid.) It held a defendant who stipulates to a
grand jury transcript as the factual basis for a plea may still make a prima
facie showing of eligibility for relief by identifying a scenario under which he
or she was guilty of murder only under a now-invalid theory, even if the
record of conviction does not demonstrate that the indictment rested on that
scenario, disagreeing with People v. Nguyen (2020) 53 Cal.App.5th 1154.
(Rivera, at p. 224.) It rejected the People’s argument that ineligibility for
section 1170.95 relief was established because the People did not rely on a
natural and probable consequences doctrine or present evidence of any
underlying target offense that could serve as a basis for that doctrine: “We
disagree with Nguyen to the extent it suggests that relief under section
1170.95 is precluded as a matter of law simply because there is no mention in
the pre-plea record of an underlying offense that could support liability for
felony murder or murder under the natural and probable consequences
doctrine. [Citation.] In our view, when a petitioner disputes that the
evidence presented at a pre-plea proceeding demonstrates his or her guilt
under a still-valid theory of murder, and no ‘ “readily ascertainable facts” ’
definitively prove otherwise, a trial court cannot deny a petition at the prima
facie stage without resorting to ‘ “factfinding involving the weighing of
evidence or the exercise of discretion.” ’ ” (Id. at p. 238.)
This case is more akin to People v. Rivera, supra, 62 Cal.App.5th 217
than it is not. As we have explained, Abad’s stipulation to the trial and
preliminary hearing transcripts and police reports as a factual basis for his
plea likewise do not definitely establish his ineligibility to section 1170.95
relief as a matter of law, where the evidence rests on Solis’s credibility and
requires the drawing of inferences as to Abad’s mental state. But it is

26
stronger than Rivera because the People presented evidence of a target
offense, robbery, that could serve as the basis for a conviction for murder
under the natural and probable consequences doctrine.
The circumstances of this case are unlike many of the other cases relied
upon by the People, including People v. Nguyen, supra, 53 Cal.App.5th 1154,
where the court held there could be no relief “as a matter of law” where
defendant pleaded guilty to second degree murder but the preliminary
hearing transcript showed the only theory was that he was a direct aider and
abettor and the record was “devoid” of any underlying crime that would
support a natural and probable consequences theory. (Id. at pp. 1166-

1168.)13 In People v. Perez (2020) 54 Cal.App.5th 896, review granted Dec. 9,
2020, S265254, cited by the People for the proposition that ineligibility may
be determined from a record leading to a guilty or no contest plea, the record
of conviction (preliminary hearing testimony) showed the defendant acted
alone to kill his wife by striking her head repeatedly with a hammer, and
admitted an allegation that he personally used a weapon in the murder’s
commission. (Id. at p. 907.) The defendant there did not aver in his section
1170.95 petition that he was not the actual killer, and he failed to identify in
his reply brief or on appeal any factual scenario under which he was not the
actual killer. (Ibid.) In People v. Daniel, supra, 57 Cal.App.5th 666 (rev. gr.,
S266336, rev. dism.), the defendant did not plead guilty or no contest; he was

13 Some of the People’s cases are now uncitable, at least in part. (People
v. Soto (2020) 51 Cal.App.5th 1043, review granted Sept. 23, 2020, S263939,
review dismissed and remanded Nov. 17, 2021, ruled “non-citable and
nonprecedential ‘to the extent it is inconsistent with’ ” People v. Lewis, supra,
11 Cal.5th 952.) Soto involved the question of whether the defendant’s
conviction for second degree murder following his jury trial was, or could
have been, based on the natural and probable consequences doctrine, making
the jury instructions (and the absence of certain instructions) particularly
relevant. (Soto, 51 Cal.App.5th at pp. 1054-1055.)
27
convicted following a jury trial of second degree murder for killing his
girlfriend. (Id. at p. 670.) The Court of Appeal held the lower court’s failure
to appoint counsel was harmless, reasoning it properly relied on jury
instructions at the defendant’s trial to determine he was not entitled to
section 1170.95 relief as a matter of law because he was “not ‘[a] person
convicted of felony murder or murder under a natural and probable
consequences theory . . . .’ ” (Id. at p. 677.)
We reverse the order denying Abad’s petition and remand with
directions to issue an order to show cause under section 1170.95, subdivision
(c), and hold a hearing consistent with section 1170.95, subdivision (d). We
express no opinion about Abad’s entitlement to relief. (§ 1170.95, subd.
(d)(2).)
DISPOSITION
The order denying Abad’s section 1170.95 petition for resentencing is
reversed. The matter is remanded to the trial court with directions to issue
an order to show cause (§ 1170.95, subd. (c)) and hold a hearing under section
1170.95, subdivision (d).

O’ROURKE, Acting P. J.

WE CONCUR:

AARON, J.

GUERRERO, J.

28