Filed 1/31/24 P. v. Hernandez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANGELA HERNANDEZ,

Defendant and Appellant.

 B328585

 (Los Angeles County

 Super. Ct. No. BA459670)

APPEAL from an order of the Superior Court of 

Los Angeles County, Laura F. Priver, Judge. Reversed and 

remanded.

Jonathan E. Demson, 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, Idan Ivri and Nikhil Cooper, Deputy 

Attorneys General, for Plaintiff and Respondent.

_____________________
2

Angela Hernandez appeals the trial court’s order denying 

her petition for vacatur of her attempted murder conviction and 

resentencing under Penal Code section 1172.6.1 Hernandez 

pleaded no contest to attempted murder and admitted the 

allegation that she personally inflicted great bodily injury upon 

the victim under circumstances involving domestic violence. The 

trial court found that Hernandez failed to make a prima facie 

showing that she was eligible for relief. On appeal, Hernandez 

argues that the trial court erred because the record of conviction 

does not preclude her from relief as a matter of law. We reverse 

the trial court’s order and remand the matter for further 

proceedings pursuant to section 1172.6. 

PROCEDURAL HISTORY

In 2017, Hernandez pleaded no contest to one count of 

attempted murder (§§ 187, subd. (a)/664) and admitted that she

personally inflicted great bodily injury upon the victim under 

circumstances involving domestic violence (§ 12022.7, subd. (e)). 

Hernandez pleaded pursuant to People v. West (1970) 3 Cal.3d 

595, and thus did not admit to a factual basis for the plea. 

Defense counsel joined in waivers, but not in the plea. Counsel 

did not stipulate to a factual basis for the plea, but stipulated to 

the complaint, which set forth the same allegations as the 

information to which Hernandez pleaded. Hernandez was 

sentenced to 12 years in state prison. 

On March 10, 2022, Hernandez filed a petition for vacatur 

of her attempted murder conviction and resentencing pursuant to 

1 All further statutory references are to the Penal Code.
3

section 1172.6 on a standard form. Hernandez requested counsel, 

which the court appointed. 

The People filed a brief opposing Hernandez’s petition on 

the ground that the preliminary hearing transcript reflected that 

Hernandez ran over the victim with her car twice. The People 

argued that, as the direct perpetrator of the attempted murder, 

Hernandez was ineligible for relief as a matter of law.

Hernandez filed a reply through counsel. The reply argued

that by filing a facially sufficient petition containing a declaration 

that met the requirements of section 1172.6, subdivisions (a) and 

(b)(1)(A), Hernandez made a prima facie showing of eligibility for 

resentencing. Hernandez asserted that the evidence contained in 

the preliminary hearing transcript could not preclude relief at the 

prima facie stage as a matter of law because she did not stipulate 

to the transcript or to any document as a factual basis for the 

plea, or otherwise admit that she was the actual perpetrator. 

The trial court’s consideration of the preliminary hearing 

transcript absent a stipulation would constitute fact-finding, 

which was prohibited at the prima facie stage. 

At a hearing on the matter on December 30, 2022, the 

prosecution argued that Hernandez pleaded no contest to 

attempted murder, which is a specific intent crime, as charged in 

the information. Hernandez also admitted to personally 

inflicting great bodily injury under circumstances involving 

domestic violence and therefore could not have been prosecuted 

under a natural and probable consequences theory under the 

circumstances. The prosecutor argued that the court could 

consider the preliminary hearing transcript even if Hernandez 

did not stipulate to it as a factual basis for the plea, because the 

transcript was part of the record of conviction. The preliminary 
4

hearing transcript demonstrated that Hernandez ran over the 

victim with her car. There was no question regarding her role in 

the attempted murder.

Defense counsel responded that the trial court was 

prohibited from making factual determinations based on the 

evidence in the preliminary hearing transcript. He asserted that 

Hernandez had made a prima facie showing that she was eligible 

for relief.

The court issued a written decision denying Hernandez’s 

petition. The court agreed with the parties that at the prima 

facie stage of proceedings it was limited to consideration of the 

record of conviction and could not engage in fact-finding. The 

court agreed with the People that it could consider the 

preliminary hearing transcript in Hernandez’s case because there 

were no disputed facts. The preliminary hearing transcript

showed that Hernandez acted alone, with either express or 

implied malice. As the actual perpetrator, Hernandez did not fall 

within the purview of section 1172.6. Alternatively, excluding 

the preliminary hearing transcript from consideration, the record 

of conviction was sufficient to deny the petition as a matter of 

law. Hernandez was convicted as the sole perpetrator of the 

attempted murder as charged, and admitted the personal 

infliction of great bodily injury allegation. At all times 

throughout the proceedings, the prosecution contended that 

Hernandez was the sole perpetrator. Hernandez failed to make a 

sufficient prima facie showing of eligibility. 
5

DISCUSSION

Legal Principles

When Hernandez pleaded no contest in 2017, a defendant 

could be convicted of attempted murder under the theory that the 

defendant aided and abetted a crime of which attempted murder 

was a natural and probable consequence. (See People v. Chiu 

(2014) 59 Cal.4th 155, 161 [discussing natural and probable 

consequences liability generally]; see also § 31.) Under the law at 

that time, it was not necessary to prove that the defendant 

intended that the attempted murder be committed or even that 

the defendant subjectively foresaw that attempted murder could 

result. (See Chiu, at pp. 161–162.) 

In 2019, the Legislature, through Senate Bill No. 1437 

(2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437), 

amended section 188 to eliminate the natural and probable 

consequences doctrine as it applies to murder and to require, 

with certain exceptions under the felony-murder rule, that a 

defendant act with malice to be convicted of murder. (§ 188, 

subd. (a)(3).) In 2021, through Senate Bill No. 775 (2020–2021 

Reg. Sess.) (Stats. 2021, ch. 551) (Senate Bill 775), the 

Legislature clarified that the amendments made by Senate Bill 

1437 were also intended to apply to attempted murder. Senate 

Bill 775 also amended former section 1170.95 (now § 1172.6) to 

permit persons convicted by plea agreement of attempted murder 

under the natural and probable consequences doctrine to file a 

petition with the sentencing court to vacate the conviction and be 

resentenced. (§ 1172.6, subd. (a).)
6

Under section 1172.6, a defendant convicted by plea of 

attempted murder under the natural and probable consequences 

doctrine must attest to the following: “(1) A complaint, 

information, or indictment was filed against the petitioner that 

allowed the prosecution to proceed under [a natural and probable 

consequences theory of attempted murder]. . . . [¶] (2) The 

petitioner was convicted of . . . attempted murder . . . following

. . . a plea offer in lieu of a trial at which the petitioner could 

have been convicted of . . . attempted murder. [¶] (3) The 

petitioner could not presently be convicted of . . . attempted

murder because of changes to [s]ection 188 or 189 made effective 

January 1, 2019.” (§ 1172.6, subds. (a)(1)–(a)(3), (b)(1).) 

“After a petition for resentencing is filed, the trial court 

must then determine whether the defendant has made a prima 

facie showing of entitlement to relief.” (People v. Davenport

(2021) 71 Cal.App.5th 476, 480.) “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. . . . [¶] 

While the trial court may look at the record of conviction after the 

appointment of counsel to determine whether a petitioner has 

made a prima facie case for section [1172.6] relief, the prima facie 

inquiry under subdivision (c) is limited. . . . ‘[A] court should not 

reject the petitioner’s factual allegations on credibility grounds

without first conducting an evidentiary hearing.’ [Citation.] 

‘However, if the record, including the court’s own documents, 

“contain[s] facts refuting the allegations made in the petition,” 

then “the court is justified in making a credibility determination 

adverse to the petitioner.” ’ ” (People v. Lewis (2021) 11 Cal.5th 

952, 971.) “In reviewing any part of the record of conviction at 
7

this preliminary juncture, a trial court should not engage in 

‘factfinding involving the weighing of evidence or the exercise of 

discretion.’ [Citation.] . . . [T]he ‘prima facie bar was 

intentionally and correctly set very low.’ ” (Id. at p. 972.) “At the 

prima facie stage, a court must accept as true a petitioner’s 

allegation that he or she could not currently be convicted of a 

homicide offense because of changes to [s]ection 188 or 189 made 

effective January 1, 2019, unless the allegation is refuted by the 

record. [Citation.] And this allegation is not refuted by the 

record unless the record conclusively establishes every element of 

the offense.” (People v. Curiel (2023) 15 Cal.5th 433, 463.) If the 

petitioner makes a prima facie showing of eligibility, the trial 

court must issue an order to show cause and hold an evidentiary 

hearing. (Ibid.)

We independently review a trial court’s determination of 

whether a petitioner has made a prima facie showing. (People v. 

Harden (2022) 81 Cal.App.5th 45, 52.) 

Analysis

Hernandez contends that the trial court erred by finding 

her ineligible for relief under section 1172.6 as a matter of law at 

the prima facie stage of proceedings. Hernandez argues that 

nothing in the record of conviction conclusively forecloses her 

eligibility, and that requiring her to submit additional evidence to 

overcome the evidence in the preliminary hearing transcript prior 

to an evidentiary hearing imposes a burden on her that is not 

contemplated by the statute. 

We agree. Hernandez made a prima facie showing that she 

was eligible for relief that was not refuted by the record of 
8

conviction as a matter of law. The information charged

Hernandez with attempted murder, alleging that Hernandez

“unlawfully and with malice aforethought attempt[ed] to murder” 

the victim. Because the crime of attempted murder was 

generically charged, the complaint allowed the prosecution to 

proceed on a theory of attempted murder under the natural and 

probable consequences doctrine. (See § 1172.6, subd. (a)(1); 

People v. Davenport, supra, 71 Cal.App.5th at p. 484 [“ ‘The 

allegation that a murder was committed “ ‘willfully, unlawfully, 

and with malice aforethought’ ” is a well-recognized way of 

charging murder in [a] generic sense,’ ” which “does ‘not limit the 

People to prosecuting [defendant] on any particular theories’ ”].)

Hernandez pleaded no contest pursuant to People v. West, 

supra, 3 Cal.3d 595, and did not admit to a factual basis for the 

plea. Thus, her no contest plea did not constitute an admission to 

the manner in which she committed the attempted murder. (See 

People v. French (2008) 43 Cal.4th 36, 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”].) 

Hernandez’s admission that she personally inflicted great 

bodily injury upon the victim under circumstances involving 

domestic violence (§ 12022.7, subd. (e)) also does not foreclose as 

a matter of law the possibility that she was convicted under the 

natural and probable consequences doctrine. Section 12022.7, 

subdivision (e) imposes additional punishment on “[a]ny person 

who personally inflicts great bodily injury under circumstances 

involving domestic violence in the commission of a felony or 
9

attempted felony.” “ ‘Domestic violence’ means abuse committed 

against an adult or a minor who is a spouse, former spouse, 

cohabitant, former cohabitant, or person with whom the suspect 

has had a child or is having or has had a dating or engagement 

relationship.” (§ 13700, subd. (b).) “ ‘Abuse’ means intentionally 

or recklessly causing or attempting to cause bodily injury, or 

placing another person in reasonable apprehension of imminent 

serious bodily injury to himself or herself, or another.” (§ 13700, 

subd. (a).) The enhancement does not require that the defendant 

act with express or implied malice as attempted murder does.

Finally, the preliminary hearing transcript does not 

establish that Hernandez is prima facie ineligible for relief as a 

matter of law. Hernandez did not admit to the truth of the facts 

contained in the preliminary hearing transcript. Her counsel 

argued in the trial court and again on appeal that, because 

Hernandez made no such admission, she was not estopped from

rebutting the evidence contained in the preliminary hearing 

transcript at an evidentiary hearing held pursuant to section 

1172.6, subdivision (d)(3). 

Hernandez is correct. Our Supreme Court has recently 

emphasized that at the prima facie stage a trial court is only

permitted to deny the petition if the record of conviction 

“foreclose[s] [the] possibility [that the petitioner was convicted 

under an invalid theory] as a matter of law.” (People v. Curiel, 

supra, 15 Cal.5th at p. 470].) If there is a possibility that the 

petitioner could provide evidence to rebut the evidence in the 

record of conviction (including the preliminary hearing

transcript), the resolution of the matter involves fact-finding and

an evidentiary hearing is required. (People v. Lewis, supra, 11 

Cal.5th at p. 972.)
10

We are not persuaded otherwise by People v. Patton (2023) 

89 Cal.App.5th 649, review granted June 28, 2023, S279670, and 

People v. Pickett (2022) 93 Cal.App.5th 982, review granted 

October 11, 2023, S281643, which are distinguishable. In both 

cases, the courts of appeal concluded that the evidence contained 

in the preliminary hearing transcript conclusively foreclosed the 

possibility that the petitioner was convicted under an invalid 

theory of liability in part because the defendant did not file a 

reply in response to the People’s opposition to the petition or 

otherwise object to the evidence in the preliminary hearing 

transcript. (Patton, at pp. 654, 658 [evidence in preliminary 

hearing transcript was “uncontroverted”]; Pickett, at p. 990

[same].) Here, counsel filed a reply arguing that the preliminary 

hearing transcript did not preclude relief as a matter of law and 

argued the issue in a hearing before the trial court. The 

preliminary hearing transcript was not uncontroverted in 

Hernandez’s case.
11

DISPOSITION

We reverse the trial court’s order denying Hernandez’s 

petition for resentencing under Penal Code section 1172.6 and 

remand for further proceedings. 

NOT TO BE PUBLISHED.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.