People v. Garcia CA2/4

Filed 10/13/23 P. v. Garcia CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B322633
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. TA112289)

v.

JUSTIN MATTHEW GARCIA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Laura R. Walton, Judge. Reversed and
remanded, with directions.
Marta I. Stanton, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Blythe J. Leszkay, Deputy Attorney
General, for Plaintiff and Respondent.
 In 2011, defendant and appellant Justin Matthew Garcia
pleaded no contest to one count of attempted murder. In 2022,
appellant filed a petition for resentencing under Penal Code
section 1172.6.1 The trial court summarily denied the petition,
finding appellant ineligible for relief based on facts obtained from
a preliminary hearing transcript.
On appeal, appellant contends the trial court improperly
relied on the preliminary hearing transcript to deny his petition
without holding an evidentiary hearing. We agree. We reverse
the order summarily denying appellant’s petition and direct the
trial court to vacate its prior order, issue an order to show cause,
and hold an evidentiary hearing.

BACKGROUND
A. Evidence at the Preliminary Hearing
At the July 2010 preliminary hearing, Michael Manning
testified that he, his mother Gloria Manning, and three other
people were sitting at the edge of a garage adjacent to Michael’s
home drinking coffee around 8:30 a.m. on March 30, 2010.2
Michael’s home was situated one house away from a residential
intersection. Looking through the opening in his garage, Michael
saw a gold van drive by his house and park on the corner of the
nearby intersection. Michael saw a man wearing a white and
black hat with the letter “T” and a hooded sweatshirt sitting in a
passenger-side seat of the van. Michael did not notice the driver
of the van.

1 Subsequent references to statutes are to the Penal Code.

2 For ease of reading, we refer to Michael and Gloria by their first
name.

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 Michael testified that about a minute later, the man
wearing the black and white hat and hooded sweatshirt walked
15 to 20 feet around the corner of the intersection, stepped off the
sidewalk, and stood in the street facing Michael and the others.3
As the man fired around seven shots at the group, everyone but
Michael, who was in a wheelchair, ran inside the house. Michael
saw the shooter directly at some point but acknowledged the
presence of a van parked in the driveway between himself and
the shooter. Gloria’s car, which was positioned somewhere
between Michael and the shooter in the street, was hit with
bullets. Michael turned his head away from the shooter while
attempting to pick himself up. He did not see the shooter run
away. When deputy sheriffs responded to his home several
minutes later, Michael described the van and the shooter.
Several minutes after Deputy Sheriff Isidro Martinez
responded to the shots-fired call at Michael’s home, Deputy
Martinez was called to a nearby intersection where appellant and
codefendant Robert Lopez had been apprehended. According to
Detective Albert Carrillo, when appellant and codefendant Lopez
were initially detained, codefendant Lopez (and not appellant)
was wearing a black and white hat. Detective Carrillo testified it
was “not uncommon for gang members to either switch
clothing . . . to confuse the victims and witnesses . . . .” Michael
identified appellant as the shooter at a field show up.
During an interview with Deputy Martinez, codefendant
Lopez identified himself as a member of the Tortilla Flats gang.
He also told Deputy Martinez he had driven the van on the day of

3 When the man turned the corner, Michael noticed him pulling
the hood over his hat. The man also wore brown gloves.

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the shooting.4 The parties stipulated that the Compton Varrio
Tortilla Flats gang was a criminal street gang under former
section 186.22. Detective Carrillo testified that he knew
appellant and codefendant Lopez as members of the Compton
Varrio Tortilla Flats gang. Detective Carrillo also testified that
members of the gang wear hats with the letter “T” to signify the
short name of the gang (“T Flats”).

B. Information, Plea, and Sentencing
By information, appellant and codefendant Lopez were both
charged with four counts of attempted willful, deliberate, and
premeditated murder (§§ 664, 187, subd. (a), counts 1–3, 7) and
four counts of assault with a firearm (§ 245, subd. (a)(2), counts
4–6, 8). On each count of attempted murder, the information
alleged appellant and codefendant Lopez “unlawfully and with
malice aforethought attempt[ed] to murder” Manning and the
other victims. The information also alleged the offenses were
committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(C)), and that a principal personally and intentionally
discharged a firearm (§ 12022.53, subds. (b)–(c), (e)(1)).
Appellant and his trial counsel appeared at a pretrial
conference held on December 15, 2010. As provided in the

4 Detective Dennis Salcedo testified that he took control of
codefendant Lopez’s cell phone when appellant and Lopez were
detained. Detective Lopez looked at Lopez’s messages and saw the
following message sent on March 30 at 8:25 a.m. to a known Compton
Varrio Tortilla Flats gang member: “‘We need bullets, ese. Me and
Little G just dropped a fruta rite [sic] now.’” According to Detective
Carrillo’s testimony, the Fruit Town gang is a rival to the Compton
Varrio Tortilla Flats gang.

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minute order of the conference, appellant “personally withdr[ew
his] plea of not guilty to count [one] and plead[ed] nolo
contendere with the approval of the court to a violation of
section 664[-]187(a) PC in count [one]. The court [found
appellant] guilty.” “[Appellant also] admit[ted] allegation
pursuant to Penal Code section 12022.53(c).”5 The court found a
factual basis for the plea, accepted the plea, and sentenced
appellant to the upper term of nine years on count one plus 20
years for the firearm enhancement. The court dismissed the
remaining counts and enhancement allegations. The record does
not include a reporter’s transcript of the pretrial conference.

C. Section 1172.6 Proceedings
In April 2022, appellant filed a petition to vacate his
attempted murder conviction under section 1172.6. In his
petition, appellant alleged he had been convicted of attempted
murder and “could not presently be convicted of . . . attempted
murder because of changes made to [sections] 188 and 189,
effective January 1, 2019.” The court appointed appellant
counsel and accepted a response brief from the People, which
attached the July 2010 preliminary hearing transcript as an
exhibit.
At a hearing on appellant’s petition on August 1, 2022, the
parties submitted on the briefing. Based on the preliminary
hearing testimony, the court ruled it was “clear that [appellant]
was the actual shooter in this case. And the only theory of

5 The minute order does not indicate whether appellant admitted
that he had personally and intentionally discharged a firearm
(§ 12022.53, subd. (c)), or admitted a principal personally and
intentionally discharged a firearm (§ 12022.53, subds. (c), (e)(1)).

5
liability is direct liability on the attempted murder.” After
quoting the preliminary hearing testimony, the court found
appellant had been prosecuted as the actual shooter and had not
been prosecuted under felony murder or the natural and probable
consequences doctrine. Finding appellant ineligible for relief as a
matter of law, the court summarily denied the petition.

DISCUSSION
A. Section 1172.6
Through Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 1),
the Legislature clarified the felony-murder rule and eliminated
the natural and probable consequences doctrine to ensure that
any murder conviction and attached sentence is commensurate
with individual culpability. (People v. Gentile (2020) 10 Cal.5th
830, 842–843; People v. Lewis (2021) 11 Cal.5th 952, 957, 971
(Lewis); accord, § 189, subd. (e).) The Legislature also added
former section 1170.95 (now section 1172.6), pursuant to which
individuals convicted of felony murder or murder under the
natural and probable consequences doctrine may petition for
vacatur of their convictions and resentencing. (§ 1172.6,
subd. (a).)
Effective January 2022, Senate Bill No. 775 added persons
convicted of “attempted murder under the natural and probable
consequences doctrine,” to subdivision (a) of section 1172.6.
Under amended section 1172.6, persons convicted of “attempted
murder, . . . following a trial or accepted a plea offer in lieu of a
trial at which the petitioner could have been convicted of . . .
attempted murder” are entitled to vacatur of their conviction and
subject to resentencing on any remaining count if they could not
presently be convicted because of changes to Section 188 or 189

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made effective by Senate Bill No. 1437. (Stats. 2021, ch. 551, § 2;
see § 1172.6, subd. (a).)
In relevant part, a section 1172.6 petition must allege (1) a
complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to pursue an attempted
murder conviction under the natural and probable consequences
doctrine; (2) the petitioner was convicted of attempted murder
following a trial or accepted a plea offer in lieu of a trial at which
the petitioner could have been convicted of murder or attempted
murder; and (3) the petitioner could not presently be convicted of
attempted murder because of changes to Section 188 or 189 made
effective by Senate Bill No. 1437. (§ 1172.6, subd. (a).)
Within 60 days after service of a facially compliant petition,
the prosecution must file and serve a response, after which the
court must hold a hearing “to determine whether the petitioner
has made a prima facie case for relief. If the petition makes [this]
showing . . . the court shall issue an order to show cause” and set
an evidentiary hearing. (§ 1172.6, subd. (c).)

B. Prohibited Factfinding Occurred at the Prima Facie
Stage
Appellant contends the court prejudicially erred by
weighing facts established by the testimony from his preliminary
hearing at the prima facie stage of review. We agree.

1. Governing Law: The Record of Conviction
Upon the filing of a facially compliant petition and an
opportunity to submit briefing, the trial court must hold a
hearing to determine whether the petitioner made a prima facie
case for relief. (§ 1172.6, subd. (c).) At this prima facie stage, the

7
parties “can, and should, use the record of conviction to aid the
trial court in reliably assessing whether a petitioner has made a
prima facie case for relief” under section 1172.6, subdivision (c).
(Lewis, supra, 11 Cal.5th at p. 972.)
The record of conviction consists of “those record documents
reliably reflecting the facts of the offense for which the defendant
[has been] convicted.” (People v. Reed (1996) 13 Cal.4th 217,
223.) Such documents may include the charging document and
plea form; transcripts of the preliminary hearing and trial; jury
instructions, verdicts, and special findings; probation report;
abstract of judgment; and any appellate opinion(s). (See, e.g.,
Lewis, supra, 11 Cal.5th at p. 972; People v. Strong (2022) 13
Cal.5th 698, 703–704, 721 (Strong); People v. Harden (2022) 81
Cal.App.5th 45, 52 (Harden); People v. Ervin (2021) 72
Cal.App.5th 90, 106.) Review of these record documents at the
prima facie stage is both practical and consistent with
section 1172.6. “The record of conviction will necessarily inform
the trial court’s prima facie inquiry . . . , allowing the court to
distinguish petitions with potential merit from those that are
clearly meritless. This is consistent with the statute’s overall
purpose: to ensure that murder [and attempted murder]
culpability is commensurate with a person’s actions, while also
ensuring that clearly meritless petitions can be efficiently
addressed as part of a single-step prima facie review process.”
(Lewis, supra, at p. 971.)
Despite a resentencing court’s ability to review any portion
of a petitioner’s record of conviction, that review is “limited.”
(Lewis, supra, 11 Cal.5th at pp. 971, 972.) “Like the analogous
prima facie inquiry in habeas corpus proceedings, ‘“the court
takes petitioner’s factual allegations as true and makes a

8
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”’” and hold an
evidentiary hearing. (Lewis, supra, 11 Cal.5th at p. 971.) “‘[A]
court should not reject the petitioner’s factual allegations on
credibility grounds without first conducting an evidentiary
hearing.’ [Citation.]” (Ibid.; see also People v. Duvall (1995) 9
Cal.4th 464, 475 [order to show cause must issue in habeas
proceeding if the court makes a “preliminary determination that
the petitioner has pleaded sufficient facts, that, if true, would
entitle him to relief”]; In re Sassounian (1995) 9 Cal.4th 535, 547
[prima facie determination “is truly ‘preliminary’: it is only
initial and tentative, and not final and binding”].)
Given the Legislature’s intent to enact section 1172.6 by
setting “‘the prima facie bar . . . very low,’” a resentencing court
must not engage in “‘factfinding involving the weighing of
evidence or the exercise of discretion.’ [Citation.]” (Lewis, supra,
11 Cal.5th at p. 972.) Nor may the court “‘decide unresolved
factual issues[ ] that involve credibility determinations . . . .’”
(Harden, supra, 81 Cal.App.5th at p. 51, quoting People v.
Duchine (2021) 60 Cal.App.5th 798, 811–812 (Duchine).)
In view of these principles, a resentencing court may deny a
resentencing petition at the prima facie stage if readily
ascertainable facts in the record of conviction refute the
allegations in the petition and make the petitioner “ineligible for
relief as a matter of law.” (Harden, supra, 81 Cal.App.5th at
p. 52; see Duchine, supra, 60 Cal.App.5th at p. 815.) “As a matter
of law” means the record of conviction conclusively refutes the
allegations of the petition without resort to factfinding, weighing
of evidence, or credibility determinations. (People v. Lopez (2022)

9
78 Cal.App.5th 1, 14; accord, Lewis, supra, 11 Cal.5th at pp. 970–
972; People v. Flores (2022) 76 Cal.App.5th 974, 991 (Flores).)

2. The Conflict in Authority on Preliminary Hearing
Transcripts
It is not always clear to resentencing courts what can be
considered in deciding whether the record of conviction
conclusively refutes the allegations of a section 1172.6 petition, as
the law in this area continues to evolve. Courts are presently
divided as to whether or to what extent a preliminary hearing
transcript may be used to determine a petitioner’s ineligibility for
resentencing under section 1172.6 as a matter of law.
One line of authority has deemed it appropriate to rely on
uncontroverted facts appearing in a preliminary hearing
transcript. In People v. Patton (2023) 89 Cal.App.5th 649
(Patton), review granted June 28, 2023, S279670, the defendant
pleaded no contest to attempted murder and admitted he
personally used and discharged a firearm. (Id. at pp. 652–653.)
Years later, the defendant filed a resentencing petition. (Id. at
p. 654.) The People opposed the petition on the ground the
defendant was “‘the direct perpetrator [and] could not have been
convicted of attempted murder based upon the natural and
probable consequences doctrine.’” (Ibid.) At the prima facie
hearing, the trial court informed the parties it had reviewed
transcripts of the preliminary hearing and change of plea. (Ibid.)
Based on testimony from the preliminary hearing, the court
found the defendant was “‘the shooter, and there was only one
shooter’” during the events giving rise to the no contest plea.
(Ibid.) The court summarily denied the petition. (Ibid.)

10
 In affirming the summary denial in Patton, the court
rejected the argument by the defendant that the trial court had
impermissibly engaged in factfinding, noting: “The sworn
testimony [at the preliminary hearing], based on surveillance
video of the crime, that [the defendant] committed the shooting
was and is uncontroverted.” (Patton, supra, 89 Cal.App.5th at
p. 658.) The court found the defendant had never “assert[ed] he
was not the sole and actual perpetrator” or provided “any theory
to support his implicit contention now that he was an accomplice
and not the person who actually shot [the victim]. Nor, on
appeal, has [the defendant] even suggested what facts he has to
demonstrate that someone else shot [the victim] and he was
merely an accomplice.” (Id. at pp. 657, 658, fn. 5.) Finding the
uncontroverted record established the defendant’s role as “the
sole and actual perpetrator of the attempted murder” with no
other individual involved, the court concluded the defendant was
ineligible for relief as a matter of law. (Id. at p. 657; accord,
People v. Pickett (2023) 93 Cal.App.5th 982, 989–991 [the
defendant “declined to file a [reply] brief or raise any factual
issue or argument” in support of his resentencing petition],
review granted Oct. 11, 2023, S281643.)6
Under another line of authority, a trial court may not use
testimony from a preliminary hearing at the prima facie stage
absent a stipulation by the petitioner that the transcript provided
a factual basis for the plea. In People v. Davenport (2021) 71

6 In its order granting review, the Court stated that Patton “may
be cited, not only for its persuasive value, but also for the limited
purpose of establishing the existence of a conflict in authority that
would in turn allow trial courts to exercise discretion . . . , to choose
between sides of any such conflict.” (S279670.)

11
Cal.App.5th 476 (Davenport), the defendant pleaded no contest to
second degree murder with a firearm enhancement. (Id. at
pp. 478–479.) Thereafter, the defendant filed a resentencing
petition, the court appointed counsel, and the parties submitted
additional briefing. (Id. at p. 480.) Following a hearing, the
court summarily denied the resentencing petition based in
relevant part on the “facts taken from the preliminary hearing
transcript that [the defendant] had approached a car . . . , and
killed the victim by shooting him at close range.” (Ibid.)
The Davenport court reversed. The court agreed with the
defendant’s contention “that the trial court erred in considering
facts from the preliminary hearing transcript here because [the
defendant] did not stipulate to the transcript as a factual basis
for his plea.” (Davenport, supra, 71 Cal.App.5th at p. 481.) In
reaching this conclusion, the court reasoned the prima facie stage
of review “is a test of the petitioner’s pleaded allegations, not an
inquiry into the truth of those allegations and the credibility of
the evidence on which they may rely.” (Id. at p. 483.) The court
continued:

“The exception, for ‘readily ascertainable facts’ in the
record of conviction that ‘“‘refut[e] the allegations
made in the petition’”’ (Lewis, supra, 11 Cal.5th at
p. 971), bars a petitioner from pleading things that
the record of conviction necessarily establishes are
untrue . . . . If the exception were to be read more
broadly, allowing inquiry into the historical facts that
may appear in the court’s files but that were never
admitted by the petitioner as the factual basis for a
plea, the exception would swallow the rule and

12
 convert the prima facie inquiry into a factual contest,
which is reserved for evidentiary hearings at the
section [1172.6], subdivision (d) stage. Because [the
defendant] did not stipulate that the preliminary
hearing transcript provided the factual basis for his
no contest plea, the transcript does not conclusively
‘refute’ his allegations.” (Davenport, supra, 71
Cal.App.5th at p. 483.)

The Davenport court also questioned the reasoning in cases
reaching a contrary conclusion. “In our view, by focusing on what
[a petitioner] could have proffered at the prima facie stage to
counter the evidence set forth in the preliminary hearing
transcript, the . . . analysis allocates to petitioners an evidentiary
burden that should be on the state (§ [1172.6], subd. (d)(3)), and
effectively raises ‘“the prima facie bar [that] was intentionally
and correctly set very low”’ (Lewis, supra, 11 Cal.5th at p. 972).”
(Davenport, supra, 71 Cal.App.5th at p. 483, fn. omitted; accord,
People v. Nguyen (2020) 53 Cal.App.5th 1154, 1161, 1167–1168
(Nguyen) [considering preliminary hearing transcript in view of
stipulation it provided a factual basis for plea].)
The third line of authority prohibits any use of testimony
from a preliminary hearing to determine a petitioner’s
ineligibility for relief, even in cases in which the defendant
previously stipulated to a factual basis for the plea. (See People
v. Rivera (2021) 62 Cal.App.5th 217, 224 (Rivera) [“a defendant
who stipulated to a grand jury transcript as the factual basis of
the plea may 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

13
conviction does not demonstrate that the indictment rested on
that scenario”]; accord, Flores, supra, 76 Cal.App.5th at pp. 987–
992; People v. Eynon (2021) 68 Cal.App.5th 967, 976, 978–979
(Eynon) [while the defendant admitted “he was liable for a
murder committed with malice, deliberation, and premeditation,
he did not admit that he acted with malice, deliberation, or
premeditation”].) This rule derives from prohibitions on
factfinding in analogous sentencing proceedings (see Rivera,
supra, at p. 235, citing People v. French (2008) 43 Cal.4th 36, 50–
52 [aggravating sentencing circumstance] (French); People v. Saez
(2015) 237 Cal.App.4th 1177, 1206–1207 [determination of prior
strike]) and from the Legislature’s intent to set a “‘“very low”’”
bar at the prima facie stage. (Flores, supra, at p. 991, quoting
Lewis, supra, 11 Cal.5th at p. 972.)

3. Analysis
Although opinions differ on whether or to what extent a
preliminary hearing transcript may be used at the prima facie
stage of review, they uniformly recognize that a transcript may
not be used to decide unresolved factual issues implicating
credibility determinations or the weighing of evidence. Because
we conclude factfinding occurred at the prima facie stage of
review in this case, we must reverse.
At the time appellant and codefendant Lopez were charged,
an accomplice to the perpetrator of attempted murder could be
convicted of premeditated attempted murder directly or under
the natural and probable consequences doctrine without having
an intent to kill. (People v. Favor (2012) 54 Cal.4th 868, 879–880
[“it is only necessary that the attempted murder ‘be committed by
one of the perpetrators with the requisite state of mind’”].)

14
 The information does not establish appellant’s ineligibility
for resentencing relief as a matter of law. Appellant and
codefendant Lopez were both charged with attempted willful,
deliberate, and premeditated murder (§§ 664, 187, subd. (a)).
“[G]iven that the allegation that a murder was committed
‘willfully, unlawfully, and with malice aforethought’ is a generic
charge permitting the prosecution to proceed on any theory of
murder, we cannot conclude that by admitting to the murder as
charged [the petitioner] admitted that he acted with actual
malice, . . . .” (Rivera, supra, 62 Cal.App.5th at p. 234; accord,
Flores, supra, 76 Cal.App.5th at p. 987; Eynon, supra, 68
Cal.App.5th at pp. 970–971.)
Appellant’s no contest plea did not constitute an admission
as to the manner in which he committed attempted murder
either. (See French, supra, 43 Cal.4th at p. 49; People v. Delgado
(2008) 43 Cal.4th 1059, 1066 [“if the prior conviction was for an
offense that can be committed in multiple ways, and the record of
conviction does not disclose how the offense was committed, a
court must presume the conviction was for the least serious form
of the offense”].) As the record of appellant’s conviction does not
include a reporter’s transcript of the pretrial conference at which
he changed his plea, the factual basis on which that plea was
based remains unclear. The information and plea do not
establish the theory of appellant’s conviction under a direct
perpetrator theory, direct aiding and abetting, or aiding and
abetting under the natural and probable consequences doctrine.
The People purport to rely on excerpts of preliminary
hearing testimony to prove appellant was the actual shooter.
They note that because appellant has not disputed this testimony
or identified any evidence to show he was not the shooter, the

15
preliminary hearing testimony is undisputed and conclusively
shows appellant was the only shooter. As we interpret the
argument, the People contend that because the evidence
indisputably shows he was the only shooter, appellant must have
pleaded guilty to the charge as the direct perpetrator who acted
with the intent to kill.
We reject this argument for several reasons. First, it is
questionable whether the preliminary hearing transcript
provides a proper basis upon which to refute the allegations in
his petition as a matter of law, particularly as appellant never
stipulated the transcript provided a factual basis for his no
contest plea. (Davenport, supra, 71 Cal.App.5th at p. 483; see
Nguyen, supra, 53 Cal.App.5th at pp. 1167–1168.)
Second, the argument ignores excerpts of the transcript
casting doubt on the identity of the shooter in this case. Michael
testified two cars obstructed his view of the shooter at various
times leading up to and during the shooting. When appellant
and codefendant Lopez were apprehended, it was codefendant
Lopez who was wearing the hat Michael associated with the
shooter. This case does not involve the “sole perpetrator”
scenario presented in Patton. (See Patton, supra, 89 Cal.App.5th
at pp. 652–653, 657.)
Finally, we decline to impose the additional burden implicit
in the People’s argument, which would require the petitioner to
make an offer of proof or submission of evidence to rebut any
facts taken from a preliminary hearing transcript. (See
Davenport, supra, 71 Cal.App.5th at p. 483; cf. Strong, supra, 13
Cal.5th at p. 713 [“We agree . . . that a defendant may still
challenge prior adverse special circumstance findings in other
types of proceedings, just as the defendant could have before

16
section 1172.6 was enacted. But nothing in section 1172.6 says
that a defendant must always do so before seeking
resentencing.”].)

C. Admission to the Firearm Enhancement Did Not
Conclusively Establish Appellant’s Ineligibility
Appellant also asserts his admission to the firearm
enhancement did not constitute an admission he was the actual
perpetrator who committed the shooting with the intent to kill.
Again, we agree.
To begin with, it is unclear what firearm enhancement
appellant admitted at the pretrial conference. As the record of
conviction contains no transcript of the conference, all we have is
a minute order stating that appellant “admits allegation
pursuant to Penal Code section 12022.53(c).” However, the
information never alleged a section 12022.53, subdivision (c)
enhancement. Instead, the information alleged as part of every
attempted murder count “that a principal personally and
intentionally discharged a firearm, a handgun, within the
meaning of Penal Code section 12022.53(c) and (e)(1).” Put more
simply, the information alleged that a principal in the offense
personally and intentionally discharged a firearm while
committing a felony for the benefit of a criminal street gang.
Viewing the minute order and information together, it is
unclear if (1) appellant admitted an uncharged allegation that he
had personally and intentionally discharged a firearm
(§ 12022.53, subd. (c)); or (2) he admitted a charged allegation
that he was subject to the enhancement as a non-shooter because
he violated the gang enhancement statute (§ 186.22, subd. (b))
and another principal in the offense (presumably codefendant

17
Lopez) personally and intentionally discharged a firearm
(§ 12022.53, subds. (c), (e)(1)). The parties’ dispute on these
scenarios—appellant contends he admitted the second scenario;
the People contend he admitted the first—is additional proof that
a court cannot make a conclusive finding on either scenario.
Assuming under the first scenario that appellant admitted
an allegation directly under section 12022.53, subdivision (c), his
admission did not establish as a matter of law that he was the
actual perpetrator of the shooting or acted with intent to kill. In
People v. Offley (2020) 48 Cal.App.5th 588 (Offley), the court held
that because “an enhancement under section 12022.53,
subdivision (d) does not require that the defendant acted either
with the intent to kill or with conscious disregard to life, it does
not establish that the defendant acted with malice aforethought.”
(Id. at p. 598.) As it does now, section 12022.53, subdivision (d),
provided a sentence enhancement for persons who personally and
intentionally discharge a firearm and proximately cause great
bodily injury in the commission of attempted murder or other
specified felony. Noting this limited language, the Offley court
found section 12022.53, subdivision (d) “does not refer to an
‘intent to achieve any additional consequence.’ [Citation.] It is
thus a general intent enhancement, and does not require the
prosecution to prove that the defendant harbored a particular
mental state as to the victim’s injury or death.” (Id. at p. 598.)
Here, subdivision (c) of section 12022.53 is similar to
subdivision (d) but omits the requirement the shooting
proximately caused great bodily injury or death. (§ 12022.53,
subd. (c) [prescribing an additional and consecutive 20-year term
of imprisonment for committing attempted murder by “personally
and intentionally discharg[ing] a firearm”].) It requires the

18
intentional discharge of a firearm but does not refer to an intent
to achieve any additional consequence. While an inference could
be made appellant was the actual shooter who acted with the
intent to kill, as we have discussed appellant’s plea did not
include an admission he was the sole shooter involved in this
case, that he fired the bullets in front of Michael’s residence, or
that he intended to shoot or kill Michael. Thus, at this stage of
the proceedings the court could not so conclude as a matter of
law.

DISPOSITION
The order summarily denying appellant’s petition for
resentencing under section 1172.6 is reversed and the matter is
remanded. On remand, the trial court is directed to vacate its
prior order denying appellant’s petition, issue an order to show
cause, and hold an evidentiary hearing pursuant to
section 1172.6, subdivision (d). We express no opinion on the
merits of the resentencing petition at that hearing.

MORI, J
We concur:

COLLINS, Acting P. J.

ZUKIN, J.

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