Filed 9/20/23; Certified for Publication 10/16/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

JOSE LUIS SAAVEDRA,

 Defendant and Appellant.

 G061556

 (Super. Ct. No. 02CF1743)

 O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, 

Michael J. Cassidy, Judge. Affirmed.

Stephanie M. Adraktas, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney 

General, Daniel Rogers and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff 

and Respondent.

* * *
2

INTRODUCTION

Defendant Jose Luis Saavedra appeals from an order denying his petition 

for resentencing pursuant to Penal Code former section 1170.95 (now Pen. Code, 

§ 1172.6).1 He contends he made a prima facie claim for relief and, therefore, the trial 

court erred by not issuing an order to show cause and conducting an evidentiary hearing. 

We affirm because, we conclude, the factual basis for Saavedra’s guilty plea establishes 

as a matter of law that Saavedra is ineligible for relief. 

FACTS

In November 2002, Saavedra was charged with three counts of attempted 

deliberate premeditated murder, four counts of assault with a firearm, and one count of 

shooting at an occupied vehicle. An enhancement alleged he personally discharged a 

firearm causing great bodily injury. In May 2003, Saavedra entered a guilty plea. 

Saavedra offered this factual basis for his plea: “On June 23, 2002 in Orange County, I 

willfully, unlawfully and with malice aforethought attempted to murder [three] human 

beings, by personally discharging a firearm at the vehicle [they] were occupying, within 

the meaning of . . . Section 12022.53[ subdivision(c)].” 

The trial court sentenced Saavedra to the upper term of nine years for each 

of the counts for attempted murder, with the terms to run concurrently, and a consecutive 

term of 20 years on the personal discharge of a firearm enhancement connected to 

count 1. 

In early 2022, Saavedra filed his petition for resentencing under section 

1172.6. The court appointed counsel to represent him. In response to the petition, the 

1

 Effective June 30, 2022, Penal Code section 1170.95 was renumbered 

section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We shall use the 

current Penal Code section number throughout our opinion. All further statutory 

references are to the Penal Code. 
3

district attorney submitted the plea form, the abstract of judgment, the transcript from the 

preliminary hearing, and the information. 

The trial court conducted a hearing to determine whether to issue an order 

to show cause. After hearing argument from counsel, the court denied the petition 

without issuing an order to show cause. The court concluded Saavedra failed to make a 

prima facie showing of eligibility for relief: “The factual basis of the plea form is very 

specific. He is the actual shooter. And he specifically indicates that he attempted to 

murder three people and ‘by,’ is the key word, by personally discharging a firearm at 

them.” 

DISCUSSION

The trial court denied Saavedra’s resentencing petition on the ground 

Saavedra failed to make a prima facie case for resentencing relief. “‘A denial at that 

stage is appropriate only if the record of conviction demonstrates that “the petitioner is 

ineligible for relief as a matter of law.” [Citations.] This is a purely legal conclusion, 

which we review de novo.’” (People v. Ervin (2021) 72 Cal.App.5th 90, 101.)

Relief under section 1172.6 is restricted to those convicted of murder or 

attempted murder “under a theory of felony murder, murder under the natural and 

probable consequences doctrine or other theory under which malice is imputed to a 

person based solely on that person’s participation in a crime.” (§ 1172.6, subd. (a)(1).) 

Thus, Saavedra would be ineligible for resentencing as a matter of law if the record of 

conviction conclusively establishes, with no factfinding, weighing of evidence, or 

credibility determinations, that (1) he actually attempted to kill the victims, or (2) he did 

not actually attempt to kill the victims but, with the intent to kill, aided, abetted, 

counseled, commanded, induced, solicited, requested, or assisted the actual killer in the 

commission of attempted murder, (3) he was a major participant in the underlying felony 

and acted with reckless indifference to human life, or (4) he acted with malice 
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aforethought that was not imputed based solely on participation in a crime. (§§ 188, 

subd. (a)(3), 189, subd. (e); see People v. Lewis (2021) 11 Cal.5th at 952, 971 (Lewis).)

Because counsel was appointed, and the parties were given the opportunity 

for briefing, the trial court could rely on the record of conviction to determine whether 

Saavedra made a prima facie case for relief under section 1172.6. (Lewis, supra, 11 

Cal.5th at p. 957.) “The record of conviction will necessarily inform the trial court’s

prima facie inquiry under section [1172.6], allowing the court to distinguish petitions

with potential merit from those that are clearly meritless.” (Id. at p. 971.) 

The plea form conclusively establishes as a matter of law that Saavedra is 

ineligible for resentencing under section 1172.6. As the factual basis for the plea, 

Saavedra admitted he “attempted to murder” the three victims “by personally discharging 

a firearm at the vehicle” in which the victims were riding. This factual basis establishes 

Saavedra was the actual shooter; that is, he actually attempted to murder the victims by 

shooting at their vehicle. As the trial court pointed out, in the factual basis for the plea

Saavedra admitted he attempted to murder the victims by means of discharging a firearm 

into the car in which they were in. 

The factual basis for the plea cannot reasonably be construed as imposing 

liability under the felony murder rule because Saavedra was the one who actually 

attempted to murder the victims by discharging a firearm. (§ 189, subd. (e)(1).) The 

factual basis for the plea cannot reasonably be construed as potentially imposing liability 

under the natural and probable consequences doctrine because it is a theory of vicarious 

liability, and Saavedra did not act vicariously. (See People v. Rivera (2021) 62 

Cal.App.5th 217, 231-232.)

Saavedra argues at length that an admission of acting with malice 

aforethought does render him ineligible for relief because malice can be express or 

implied. True. But it is the statement that Saavedra, with malice, attempted to murder 
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the victims by discharging a firearm into their car that renders him ineligible for relief as 

a matter of law.

Saavedra argues our analysis should be guided by People v. Rivera, supra, 

62 Cal.App.5th 217. The defendant in Rivera pleaded no contest to second degree 

murder. (Id. at p. 223.) The Court of Appeal concluded the trial court erred by finding 

the defendant had not made a prima facie case for relief and reversed an order denying 

his petition for resentencing. (Id. at pp. 224.) But in doing so, the Court of Appeal 

emphasized that the defendant had made no admissions related to the murder other than 

pleading no contest to the murder count as charged. The court acknowledged that “[i]n 

some cases, the record may reveal that a defendant admitted more than the elements of 

the offense charged, and such additional admissions may preclude relief under section 

[1172.6].” (Id. at p. 234.) Saavedra admitted more than the elements of the charged 

offenses.

Saavedra relies on People v. Offley (2020) 48 Cal.App.5th 588 (Offley). 

The defendant in Offley was one of five defendants charged with participating in a 

gang-related shooting that left one person dead and another seriously wounded. (Id. at 

p. 592.) The jury was instructed on the natural and probable consequences theory in 

cases of conspiracy. (Id. at p. 593.) The jury convicted the defendant of second degree 

murder and found to be true a sentencing enhancement allegation under section 12022.53, 

subdivision (d) that he “personally and intentionally discharged a firearm, proximately 

causing great bodily injury and death to the victim.” (Offley, at p. 593.) The trial court 

summarily denied the defendant’s petition for resentencing based on the true finding on 

the enhancement allegation. (Id. at p. 594.) The Court of Appeal concluded the trial 

court erred because a true finding on “an enhancement [allegation] under section 

12022.53, subdivision (d) does not show that a defendant acted with malice 

aforethought.” (Id. at p. 598.) The only state of mind required for a true finding under a 
6

section 12022.53, subdivision (d) enhancement is that the defendant intended to 

discharge a firearm; no additional intent to achieve any particular consequence is 

required. (Offley, at p. 598.) 

In Offley, the trial court instructed the jury on the natural and probable 

consequences doctrine, and the prosecutor argued the jury could convict the defendant on 

the basis of that instruction. (Offley, supra, 48 Cal.App.5th at p. 599.) As a consequence, 

the Court of Appeal could not exclude the possibility the jury believed that the defendant 

acted without intending to kill the victim or consciously disregarding that risk. (Ibid.) 

The court believed the jury might have concluded that the defendant had intended to take 

part in a conspiracy to commit assault with a firearm, or to fire into an occupied vehicle, 

with the aim of either injuring or merely frightening the victim and that the victim’s death 

was the natural and probable consequence of the conspiracy. (Ibid.) Under that theory, 

the jury could have convicted the defendant of murder without finding beyond a 

reasonable doubt that he had acted with malice aforethought. (Ibid.)

Saavedra argues that here, as in Offley, his admission that he discharged a 

firearm into an occupied vehicle does not conclusively establish that he did so with actual 

malice or any particular mental state. That proposition is true. But there is a significant 

additional fact here that was not present in Offley: Saavedra admitted that, with malice 

aforethought, he discharged a firearm into the vehicle occupied by the victims in an 

attempt to murder them. Saavedra’s admission in his guilty plea thus supplied the state of 

mind and criminal consequence missing from a bare true finding on a firearm discharge 

enhancement.
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DISPOSITION

The postjudgment order denying the petition for resentencing is affirmed.

SANCHEZ, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.
Filed 10/16/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

JOSE LUIS SAAVEDRA,

 Defendant and Appellant.

 G061556

 (Super. Ct. No. 02CF1743)

 O R D E R

The Office of the District Attorney has requested that our opinion, filed on 

September 20, 2023, be certified for publication. It appears that our opinion meets the 

standards set forth in California Rules of Court, rule 8.1105(c). The request is 

GRANTED.

The opinion is ordered published in the Official Reports.

SANCHEZ, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.