1

Filed 10/25/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH DAS,

Defendant and Appellant.

C096982

(Super. Ct. No. 

STKCRFECOD20170001987)

APPEAL from a judgment of the Superior Court of San Joaquin County, Bernard 

J. Garber, Judge. Reversed.

Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Senior Assistant Attorney General, Darren K. Indermill, 

Supervising Deputy Attorney General, Paul E. O’Connor, Deputy Attorney General, for 

Plaintiff and Respondent.

Defendant Joseph Ronald Das appeals from the trial court’s denial of his petition 

for resentencing under Penal Code section 1172.6.1 The trial court denied the petition

1

 Undesignated statutory references are to the Penal Code. Defendant petitioned for 

resentencing under former section 1170.95. Effective June 30, 2022, the Legislature 
2

without issuing an order to show cause or holding an evidentiary hearing, concluding the 

stated factual basis for defendant’s guilty plea refuted the allegations in his petition for 

resentencing, rendering him ineligible for relief. 

As we shall explain, while we agree with the trial court’s assessment that the 

stated factual basis, if true, demonstrates defendant stabbed the attempted murder victim 

with the intent to kill, defendant did not stipulate to the factual basis or otherwise admit 

the truth of the facts recited by the prosecutor. We agree with defendant that the trial 

court improperly engaged in factfinding at the prima facie stage and reverse for that 

reason. As a result, it is unnecessary to address defendant’s related argument that by 

engaging in factfinding at the prima facie stage, the trial court also violated his due 

process rights. 

BACKGROUND

In February 2017, defendant and several other Norteño gang members got into a 

gang-related fight with two individuals, including J.D., who was stabbed during the fight. 

J.D. survived, but his injuries required hospitalization. 

The same month, defendant and various codefendants were charged with 

attempted murder, assault with force likely to produce great bodily injury, and 

participation in criminal street gang activity. With respect to the attempted murder 

charge, the prosecution also alleged that defendant and each codefendant committed the 

offense for the benefit of, at the direction of, or in association with a criminal street gang 

with the specific intent to promote, further, or assist in criminal conduct by gang 

members. 

In June 2018, defendant entered a guilty plea to the attempted murder charge and 

admitted the gang enhancement in exchange for dismissal of the remaining counts and 

renumbered former section 1170.95 as section 1172.6 without substantive changes. 

(Stats. 2022, ch. 58, § 10.) We shall refer to the current section throughout this opinion. 
3

enhancement allegations and a stipulated sentence of nine years. Before accepting 

defendant’s guilty plea, the trial court asked whether there was “a stipulation as to the 

factual basis based on the transcript of the preliminary examination.” The prosecutor 

informed the trial court that there had not yet been a preliminary hearing. The trial court 

then asked: “So what is the factual basis?” The prosecutor responded: “Your Honor, on 

February 14th of 2017, at the South Side Park in Manteca, California, which is in San 

Joaquin County, [defendant], along with several other Norteño gang members, got into a 

fight with the victims, [J.D. and C.R.]. During the fight, [defendant] and [one of the 

charged codefendants] were punching, kicking and hitting [J.D.], knocking him to the 

ground. At one point [defendant] had a knife and stabbed [J.D.] in the head and neck and 

chest area, attempting to kill him. He suffered significant injuries and had to be 

hospitalized.” The prosecutor further stated that testimony from a gang expert would 

satisfy the elements of the gang enhancement. Without asking whether defendant (or his 

attorney) stipulated to this factual basis, the trial court stated: “I do find a factual basis 

for the plea.” 

The trial court then provided defendant with all required advisements and received 

appropriate waivers from defendant before accepting his plea of guilty to the crime of 

attempted murder and admission to the gang enhancement. The trial court also dismissed 

the remaining counts and enhancement allegations. Defendant was sentenced to a 

determinate term of nine years in accordance with the plea agreement in August 2018. 

In March 2022, defendant filed the petition for resentencing at issue in this appeal. 

In the form petition, tracking the requirements of section 1172.6, subdivision (a), 

defendant checked boxes indicating: (1) a complaint was filed against him that allowed 

the prosecution to proceed under a theory of attempted murder under the natural and 

probable consequences doctrine; (2) he accepted a plea offer in lieu of going to trial on 

the attempted murder charge; and (3) he could not presently be convicted of attempted 

murder because of changes to sections 188 and 189 made effective January 1, 2019. 
4

Defendant also requested the appointment of counsel to represent him in pursuing relief 

under this section. The same month, the trial court appointed counsel to represent 

defendant. 

The prosecution filed a response to the petition in April 2022. The main argument 

advanced by the prosecution was that defendant could still be convicted of attempted 

murder because the factual basis for defendant’s plea indicates that he “harbored the 

specific intent to kill when he stabbed his victim in the head, neck and chest area.” 

Defendant filed a reply brief the following month. Defendant argued his petition 

established a prima facie case for relief, requiring the trial court to issue an order to show 

cause and hold an evidentiary hearing. As relevant here, defendant argued his guilty plea 

to the attempted murder charge and admission to the gang enhancement did not 

disqualify him from relief as a matter of law because the complaint charged four people 

with attempted murder, did not allege who was the actual perpetrator, and did not include 

an enhancement for personal infliction of great bodily injury or personal use of a weapon. 

Thus, defendant argued, had the case gone to trial, he could have been tried for attempted 

murder on a theory of aiding and abetting a gang assault, the natural and probable 

consequence of which was attempted murder committed by one of his codefendants. 

With respect to the prosecution’s argument that the factual basis for defendant’s guilty 

plea conclusively established that he was convicted of attempted murder as the direct 

perpetrator who stabbed the victim with the intent to kill, defendant argued his stipulation 

to a factual basis for the plea did not admit the truth of the facts stated by the prosecution. 

The trial court held a hearing on the petition in September 2022. After hearing 

argument from both sides, the trial court denied the petition without issuing an order to 

show cause or holding an evidentiary hearing. As the trial court explained its reasoning, 

“the key to this” was the factual basis for the guilty plea. The trial court concluded the 

factual basis clearly demonstrated that defendant “personally attacked the victim and . . . 

acted with the intent to kill,” refuting his entitlement to relief. In this regard, the trial 
5

court added: “[W]hat’s the point of a factual basis if we can’t use it in a hearing like 

this? Why bother with a factual basis? I think the factual basis is crucial.” 

DISCUSSION

Defendant contends the trial court erred in denying his petition for resentencing 

without issuing an order to show cause and holding an evidentiary hearing because the 

stated factual basis for his guilty plea did not conclusively show that he is ineligible for 

relief and his guilty plea following the prosecutor’s recitation of the factual basis did not 

amount to a stipulation or admission to the truth of those facts. We conclude defendant is 

entitled to an evidentiary hearing on his petition. 

A. Relevant Changes to Attempted Murder Liability

Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019,

eliminated the natural and probable consequences doctrine as a basis for murder liability

and limited the scope of the felony-murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 

957 (Lewis); §§ 188, subd. (a)(3), 189, subd. (e), as amended by Stats. 2018, ch. 1015, 

§ 2, 3.) Senate Bill No. 1437 also created a procedure for defendants convicted of 

murder under the prior law to seek the ameliorative benefits of the new law by filing a 

petition to have his or her murder conviction vacated and to be resentenced on any 

remaining counts. (Lewis, at p. 957; § 1172.6.) 

Effective January 1, 2022, Senate Bill No. 775 (2020-2021 Reg. Sess.) expanded 

the petition process to include persons convicted of attempted murder under the natural 

and probable consequences doctrine. (People v. Montes (2021) 71 Cal.App.5th 1001, 

1006; § 1172.6, subd. (a).) 

Thus, at the time of defendant’s guilty plea, the law allowed him to be convicted 

of attempted murder under the natural and probable consequences doctrine, i.e., on a 

theory that he participated in a gang assault, the natural and probable consequence of 

which was attempted murder committed by one of the coparticipants in that assault. (See, 

e.g., People v. Montes, supra, 71 Cal.App.5th at p. 1008 [the defendant was convicted of 
6

attempted murder based on his participation in the target offense of assault “because the 

perpetrator . . . intended to kill and the perpetrator’s attempted murder was a natural and 

probable consequence of [the] assault”].) The new law, however, eliminates such a 

theory. Now, the People are required to prove that defendant himself harbored the 

requisite mental state for attempted murder—express malice. (See People v. Smith

(2005) 37 Cal.4th 733, 741 [the mental state required for attempted murder is “intent to 

kill or express malice”].) 

B. Analysis

We must determine whether the trial court erred in concluding the stated factual 

basis for defendant’s guilty plea conclusively undermined his prima facie case for relief. 

As we explain below, the trial court erred in this regard. 

Section 1172.6, subdivision (a) provides in relevant part: “A person convicted 

of . . . attempted murder under the natural and probable consequences doctrine . . . may 

file a petition with the court that sentenced the petitioner to have the petitioner’s . . .

attempted murder . . . conviction vacated and to be resentenced on any remaining counts 

when all of the following conditions apply: [¶] (1) A complaint, information, or 

indictment was filed against the petitioner that allowed the prosecution to proceed under 

a theory of . . . attempted murder under the natural and probable consequences doctrine. 

[¶] (2) The petitioner . . . accepted 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 Section 188 or 189 

made effective January 1, 2019.” 

There is no dispute that defendant’s petition alleged each of these conditions and 

otherwise satisfied the requirements of the statute. (See § 1172.6, subd. (b)(1)(A)-(C).) 

Thus, the trial court properly appointed counsel (id., subd. (b)(3)) and “proceed[ed] to 

subdivision (c) to assess whether [defendant] made ‘a prima facie showing’ for relief” 

(Lewis, supra, 11 Cal.5th at p. 960; § 1172.6, subd. (c) [setting a briefing schedule and 
7

requiring the court to “hold a hearing to determine whether the petitioner has made a 

prima facie case for relief”]). 

The trial court also correctly determined it could consider the record of conviction, 

including the stated factual basis for defendant’s guilty plea, in determining whether 

defendant made a prima facie case for relief. (Lewis, supra, 11 Cal.5th at pp. 970-971; 

see People v. Sohal (1997) 53 Cal.App.4th 911, 915 [“reporter’s transcript of a plea is 

considered part of the ‘record of conviction’ ”].) As our Supreme Court has explained, 

“[t]he 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.” (Lewis, at p. 971.) At the same time, “the prima 

facie inquiry under 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.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations 

on credibility grounds without first conducting an evidentiary hearing.’ [Citation.]” 

(Ibid.) Our Supreme Court also cautioned: “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.’ [Citation.] As the 

People emphasize, the ‘prima facie bar was intentionally and correctly set very low.’ ” 

(Id. at p. 972.) 

“ ‘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.” ’ [Citation.]” (Lewis, supra, 

11 Cal.5th at p. 971.) Here, the trial court concluded the stated factual basis for 

defendant’s guilty plea supplied the necessary refutation. We agree that the stated factual 

basis, if true, demonstrates defendant stabbed the attempted murder victim with the intent 
8

to kill, fatally undermining his prima facie case for relief. Defendant did not, however, 

stipulate to the stated factual basis or otherwise admit the truth of the facts recited by the 

prosecutor. 

People v. Davenport (2021) 71 Cal.App.5th 476 (Davenport) is instructive. The 

defendant in that case pled no contest to second degree murder and admitted a firearm 

use enhancement. Without stipulating to a factual basis, the defendant initialed 

paragraphs on the plea form indicating that he discussed the evidence against him with 

his attorney and believed that a jury hearing that evidence could find him guilty. (Id. at 

p. 479.) The trial court later denied the defendant’s petition for resentencing at the prima 

facie stage because he admitted the firearm enhancement and the preliminary hearing 

transcript indicated that he personally shot and killed his former girlfriend’s new 

boyfriend. (Id. at p. 480.) On appeal, our colleagues at the First Appellate District held it 

was error to rely on the preliminary hearing transcript at the prima facie stage because the 

defendant did not stipulate to that transcript as the factual basis for his plea or admit the 

truth of the facts adduced at that hearing. (Id. at pp. 481, 483-484.) After explaining that 

“ ‘a ruling holding a defendant to answer is in no way equivalent to a jury’s factual 

finding or a defendant’s admission[,]’ ” the appellate court concluded the trial court 

“engaged in ‘impermissible factfinding’ at the prima facie stage by relying on facts taken 

from the preliminary hearing transcript that were not stipulated to or admitted.” (Id. at 

p. 482.) With respect to the firearm enhancement, the court explained that the 

defendant’s admission to having used a firearm did not conclusively refute the possibility 

that he was convicted on a theory of felony murder. (Id. at pp. 484-485.) 

The Davenport court further explained that the prima facie stage “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. [Citation.] The exception, for 

‘readily ascertainable facts’ in the record of conviction that ‘ “ ‘refut[e] the allegations 

made in the petition’ ” ’ [citation], bars a petitioner from pleading things that the record 
9

of conviction necessarily establishes are untrue (such as an allegation that he is entitled to 

resentencing relief for an offense that is not listed in the statute). [Citation.] If the 

exception were to be read more broadly, allowing inquiry into the historical facts that 

may appear in the court’s files but were never admitted by the petitioner as the factual 

basis for a plea, the exception would swallow the rule and convert the prima facie inquiry 

into a factual contest, which is reserved for evidentiary hearings at the section [1172.6], 

subdivision (d) stage.” (Davenport, supra, 71 Cal.App.5th at p. 483.) 

Similarly, here, defendant did not stipulate to a factual basis for his plea, either in 

writing on a plea form or verbally at the change of plea hearing. (The record in this case 

does not even contain a plea form.) Nor can defendant’s silence following the 

prosecutor’s recitation of the factual basis somehow be interpreted as an “implied” 

stipulation or admission by defendant. Obviously, counsel’s statement, without 

defendant’s assent, is only a statement; it is not evidence. For all these reasons, we 

conclude defendant did not expressly or impliedly admit to having stabbed the victim 

with a knife in the head, neck, and chest, attempting to kill him. Although this may have 

been the prosecution’s main theory of the case, the complaint filed against defendant also 

allowed the prosecution to pursue a theory of natural and probable consequences even if 

the stabbing was perpetrated by one of the other participants in the gang assault. (See, 

e.g., People v. Montes, supra, 71 Cal.App.5th at p. 1008.) Without defendant’s 

admission to having personally stabbed the victim with the intent to kill, we do not know 

whether that was the actual basis for defendant’s plea, or whether defendant pled guilty 

because he believed the jury would have convicted him of attempted murder on a natural 

and probable consequences theory even if he was not the person who stabbed the victim. 

Had the matter gone to trial, the record of conviction might shed some light on the 

basis for defendant’s conviction because then we would know whether the jury was 

instructed on the natural and probable consequences doctrine. “However, the record of 

conviction involving a plea ‘will generally lack any comparable assurance of the basis for 
10

the conviction.’ [Citation.] This is because a magistrate or grand jury is not required to 

be convinced beyond a reasonable doubt that the defendant committed every element of 

the offense, but rather ‘ “ ‘ “must be convinced only of such a state of facts as would lead 

a [person] of ordinary caution or prudence to believe, and conscientiously entertain a 

strong suspicion of the guilt of the accused. . . .” ’ ” ’ [Citation.] Furthermore, the 

instructions to a grand jury ‘do not fix the theories on which a case may be prosecuted or 

establish the basis for a postindictment plea.’ ” (People v. Flores (2022) 76 Cal.App.5th 

974, 990.) 

In Flores, the defendant pled no contest to second degree murder and “stipulated 

that the police reports and preliminary hearing transcripts provided a factual basis for the 

plea.” (People v. Flores, supra, 76 Cal.App.5th at p. 982.) Our colleagues at the Fifth 

Appellate District held the defendant established a prima facie claim for resentencing 

because his petition was facially sufficient, the charging document did not specify or 

exclude any particular theory of murder, the defendant did not admit or stipulate to any 

particular theory of murder, and the preliminary hearing transcript did not establish his 

ineligibility as a matter of law. (Id. at pp. 987-989.) 

Like in Flores, defendant’s petition is facially sufficient. The complaint filed 

against him did not specify that he was being charged with attempted murder as the 

person who stabbed the victim with the intent to kill, nor did it limit the prosecution’s 

ability to proceed on a natural and probable consequences theory at trial. Although the 

prosecutor’s stated factual basis indicates that defendant stabbed the victim with the 

requisite intent, defendant did not admit or stipulate to this stated factual basis. Again, 

without such a stipulation or admission, we cannot conclude the record of conviction 

conclusively refutes defendant’s entitlement to relief as a matter of law.2

2 The lack of an admission by defendant distinguishes this case from People v. Fisher

(2023) 95 Cal.App.5th 1022 recently decided by our colleagues at the Second Appellate 
11

Relying on People v. Nguyen (2020) 53 Cal.App.5th 1154, the People argue that 

because the stated factual basis indicates defendant was charged with attempted murder 

as the direct perpetrator who acted with intent to kill, and “the pre-plea proceedings . . .

contain ‘no mention’ of evidence or argument” regarding the natural and probable 

consequences doctrine, “it is ‘conjecture and speculation’ [for defendant] to argue that 

[the natural and probable consequences doctrine] could have been the basis for the 

prosecution had the case gone to trial.” We are not persuaded. First, it is not speculation 

that the People could have proceeded on a natural and probable consequences theory at 

trial. Nothing in the charging document prevented the People from doing so. 

Second, unlike Nguyen, where the defendant stipulated to the preliminary hearing 

transcript as the factual basis for his plea (People v. Nguyen, supra, 53 Cal.App.5th at 

p. 1161), here, there was no such stipulation. Thus, this case is more analogous to 

Davenport. And finally, the People’s suggestion that the record of conviction must 

contain evidence or argument regarding the natural and probable consequences doctrine 

in order for defendant to prevail “allocates to [defendant] an evidentiary burden that 

should be on the state [citation], and effectively raises ‘ “the prima facie bar [that] was 

intentionally and correctly set very low” ’ [citation].” (Davenport, supra, 71 Cal.App.5th 

at p. 483.) 

District. In Fisher, the defendant, who was the only person charged with two counts of 

murder and one count of attempted murder, pleaded guilty to the charges and expressly 

admitted during the plea colloquy that the prosecutor’s statement of the facts was 

“ ‘basically [what] happened that night.’ ” (Id. at pp. 1024-1026.) Fisher’s admission of 

the statement of facts indicated that he, again the only person charged, personally shot 

and killed the victims named in counts 1 and 2 and personally shot and injured the victim 

named in count 3. (Id. at pp. 1025-1026.) After distinguishing Davenport, and other 

cases, the court explained that because Fisher “specifically admitted to shooting and 

killing two people and shooting and injuring a third person, he is ineligible for relief as a 

matter of law.” (Id. at p. 1030.) The record in this case contains no admission by 

defendant let alone one comparable to that made by Fisher.
12

We conclude the trial court erred in denying defendant’s resentencing petition at 

the prima facie stage without issuing an order to show cause and holding an evidentiary 

hearing. 

DISPOSITION

The order denying defendant’s petition for resentencing is reversed. The matter is 

remanded to the trial court with directions to issue an order to show cause and hold an 

evidentiary hearing on defendant’s petition. 

 /s/

Wiseman, J.*

We concur:

 /s/

Duarte, Acting P. J.

 /s/

Renner, J.

* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by 

the Chief Justice pursuant to article VI, section 6 of the California Constitution.