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Filed 6/7/23 P. v. Guzman CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

NICOLAS STEPHEN GUZMAN,

Defendant and Appellant.

E079284

(Super.Ct.No. FVA08536)

OPINION

APPEAL from the Superior Court of San Bernardino County. Daniel W. 

Detienne, Judge. Reversed with directions.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Charles C. Ragland, Assistant Attorney General, and Collette C. Cavalier, 

Lynne G. McGinnis, and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and 

Respondent.
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In 2000, defendant and appellant Nicolas Stephen Guzman pled guilty to second 

degree murder. In 2022, defendant filed a petition to vacate his murder conviction and 

for resentencing pursuant to Penal Code1section 1172.62that was summarily denied. 

For the reasons stated post, we reverse and remand for the trial court to issue an order to 

show cause and set an evidentiary hearing.

FACTUAL AND PROCEDURAL HISTORY

A single-count information was filed in 1998 charging the defendant with the 

October 11, 1997, murder of J.F.R. (§ 187.) The information also alleged sentencing 

enhancements for the personal use of a firearm (§12022.5, subd. (a)) and commission of 

the crime for the benefit of a criminal street gang (§186.22, subd. (b)(4)). On 

February 10, 2000, defendant pled guilty to a single count of second degree murder and 

admitted to a sentencing enhancement for the personal use of a firearm under 

section 12022.5, subdivision (a), and the gang enhancement was stricken. He was 

sentenced to 15 years to life with an additional four years for the firearm enhancement. 

Almost 22 years later, defendant filed a pro se petition for resentencing, declaring that: 

“A complaint, information, or indictment was filed against me that allowed the 

prosecution to proceed under a theory of felony murder or murder under the natural and 

probable consequences doctrine;” “I pled guilty or no contest to 1st or 2nd degree murder 

1 All further statutory references are to the Penal Code unless otherwise specified.

2 At the time of defendant’s petition, the resentencing provision was former 

section 1170.95. Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) 

renumbered former section 1170.95 as section 1172.6 without substantive changes. (See 

Stats. 2022, ch. 58, § 10.) For clarity, we refer to the provision by its current designation.
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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;” and “I could not now be convicted of 1st or 2nd degree murder 

because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019.” 

The trial court appointed counsel for the defendant, ordered briefing on whether 

the defendant had established a prima facie case for relief, and set a hearing. The People 

attached the transcript of the preliminary hearing as an exhibit to their response to the 

petition. The People argued that because an eyewitness testified at the preliminary 

hearing that defendant was the only person who approached the victim and the only 

person who fired shots, he was the actual killer and had failed to establish a prima facie 

case for relief. Defendant argued that because no reporter’s transcript of the change-ofplea hearing was available, the factual basis for the plea was unknown, and absent the 

defendant’s stipulation to the preliminary hearing transcript, consideration of preliminary 

hearing testimony was improper to rebut the defendant’s declaration at the prima facie 

stage of the resentencing proceeding. 

The trial court acknowledged that it could not determine whether defendant had 

stipulated to the preliminary hearing transcript as the factual basis for his plea. The court 

also noted there was a split of authority between People v. Davenport (2021) 71 

Cal.App.5th 476 (Davenport), which held that consideration of the preliminary hearing 

transcript at the prima facie stage absent a defendant’s stipulation was improper, and 

People v. Perez (Sept. 18, 2020, B301466) opinion ordered depublished on October 26, 
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2022, S265254 (Perez), which reached the opposite conclusion. The trial court followed 

Perez and read into the record excerpts from the preliminary hearing testimony of witness 

L.C., defendant’s former girlfriend, that she saw defendant approach the victim’s car 

alone, saw him raise up his hands, heard gunshots coming from defendant, then saw 

defendant flee. The court concluded that defendant was the actual killer, and in the 

alternative, that even without considering the preliminary hearing testimony, the record 

of conviction established that defendant was ineligible for relief as a matter of law.

DISCUSSION

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 

Reg. Sess.) “to amend the felony murder rule and the natural and probable consequences 

doctrine . . . 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.” (Stats. 2018, 

ch. 1015, § 1, subd. (f); see § 189, subd. (e).) The legislation also provided a procedure 

for persons previously convicted of murder who could not be convicted under the law as 

amended to seek vacatur of the conviction and resentencing. (§ 1172.6, subd. (a).)

Under section 1172.6, an offender seeking resentencing must file a petition in the 

sentencing court. (§ 1172.6, subd. (b)(1).) If the petition contains the required 

information, including the petitioner’s declaration establishing eligibility for relief based 

on the requirements of subdivision (a), the court must appoint counsel upon request. 

(§ 1172.6, subd. (b)(3).) The prosecutor must file a response and the petitioner may file a 
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reply. The trial court must then hold a hearing to determine if the petitioner has made a 

prima facie showing that he or she is entitled to relief. (§ 1172.6, subd. (c); see People v. 

Lewis (2021) 11 Cal.5th 952, 961-963, 967 (Lewis).) Where a petitioner has made the 

requisite prima facie showing that he is entitled to relief, the court must issue an order to 

show cause and hold an evidentiary hearing to determine whether to vacate the murder 

conviction and resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c) 

& (d)(1).)

In making this prima facie determination, the court may rely on the record of 

conviction. (Lewis, supra, 11 Cal.5th at pp. 970-971.) However, the prima facie inquiry 

is limited and, at this stage of the proceedings, the court “should not engage in 

‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Id. at 

p. 972.) “ ‘ “[T]he 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.]

‘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.” ’ ” (Ibid.)
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To demonstrate prejudice from the denial of a section 1172.6 petition before the 

issuance of an order to show cause, the petitioner must show it is reasonably probable 

that, absent error, his or her petition would not have been summarily denied without an 

evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson

(1956) 46 Cal.2d 818, 836.)

At the prima facie stage, the court may deny a petition only if the petitioner is 

ineligible for relief as a matter of law. (Lewis, supra, 11 Cal.5th at p. 966.) In other 

words, the petition and the record of conviction must “establish conclusively that the 

defendant is ineligible for relief.” (People v. Strong (2022) 13 Cal.5th 698, 708.) This 

presents a pure question of law that we review de novo. (People v. Lopez (2022) 78 

Cal.App.5th 1, 14.)

Citing Davenport, supra, 71 Cal.App.5th 476, defendant contends that since the 

record does not show that he stipulated to the preliminary hearing transcript providing the 

factual basis for his plea, the trial court’s consideration of preliminary hearing testimony 

to deny his petition without an evidentiary hearing amounts to improper factfinding at the 

prima facie stage. Defendant further argues that the trial court erred in its alternative 

holding that even without considering the preliminary hearing testimony, defendant is 

ineligible for relief because nothing in the charging document, defendant’s plea, or 

defendant’s admission to the firearm enhancement under section 12022.5 conclusively 

establishes that defendant was the actual killer. We agree.
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As in Davenport, the trial court here “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.” (Davenport, supra, 71 Cal.App.5th at p. 482; 

accord, People v. Cooper (2020) 54 Cal.App.5th 106, 123-124.) “[T]he section [1172.6], 

subdivision (c) inquiry 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 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 that 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, at p. 483.) Indeed, 

consideration of the preliminary hearing transcript has been held improper at the prima 

facie stage of a resentencing proceeding even where the defendant stipulated to the 

transcript as the factual basis for a plea. (See People v. Flores (2022) 76 Cal.App.5th 

974, 991 (Flores); see also People v. Rivera (2021) 62 Cal.App.5th 217, 238 (Rivera)

[stipulation to grand jury transcript as factual basis for plea does not allow use of 

testimony to establish ineligibility for resentencing relief].) 
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The People acknowledge that consideration of preliminary hearing testimony at 

the prima facie stage is improper under Davenport. Nevertheless, the People argue that 

regardless of any stipulation by the defendant, “the trial court should be permitted to 

consider the preliminary hearing transcript in the context of a section 1172.6 prima facie 

review in circumstances where the defendant pled guilty or no contest.” If preliminary 

hearing testimony can’t be considered in plea cases, “the remaining records in those cases 

are usually very sparse,” and therefore most petitioners convicted by plea will be able to 

establish a “prima facie case of entitlement to relief.” The People cite no authority to 

support this argument, which is not only contrary to Davenport and Flores but also seems 

to contradict the position taken in Lewis, where “the People emphasize[d that] the ‘prima 

facie bar was intentionally and correctly set very low.’ ” (Lewis, supra, 11 Cal.5th at 

p. 972.) We accordingly reject the argument. 

Moreover, as defendant points out, the preliminary hearing testimony that the trial 

court considered here was not uncontradicted. The trial court relied on the testimony of 

witness L.C., who stated that she and her friend A.L. remained together on Eighth Street 

and only the defendant walked over to approach the victim’s car, which had skidded 

around the corner onto Linden. About a minute later, L.C. heard gunshots coming from 

the defendant’s direction, but she never saw the victim, the gun, or any flashes. Other 

testimony, however, established that a different witness who “was outside their residence

working on the residence and . . . observed the . . . whole incident go down” described to 

police two girls and a male approaching the victim’s vehicle before the shooting. It 
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would thus appear that the trial court must have engaged in improper “ ‘factfinding 

involving the weighing of evidence’ ” at the prima facie stage in crediting L.C.’s 

testimony and concluding defendant must have been the actual killer. (Lewis, supra, 11 

Cal.5th at p. 972.)

The trial court also erred in its alternative holding that even without the 

preliminary hearing transcript, the record of conviction establishes that defendant is

ineligible for relief. The fact that defendant was charged with murder with malice 

aforethought does not preclude the prosecution from proceeding on a theory of imputed 

malice. (See Flores, supra, 76 Cal.App.5th at p. 987 [generic malice aforethought 

murder charge does not exclude any particular theory of murder]; People v. Eynon (2021) 

68 Cal.App.5th 967, 977-978 [same]; Rivera, supra, 62 Cal.App.5th at p. 233 [same].) 

Nor does the defendant’s admission to the personal use of a firearm under subdivision (a) 

of section 12022.5 conclusively establish that he was the actual killer. (See People v. 

Jones (2003) 30 Cal.4th 1084, 1120 [a “finding of personal use [does] not in itself prove 

[a] defendant was the actual killer”]; Davenport, supra, 71 Cal.App.5th at p. 485 

[defendant’s admission to section 12022.5, subdivision (a) “enhancement did not 

preclude the possibility of prosecution under a felony-murder theory”].) 
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DISPOSITION

The order denying defendant’s petition for resentencing is reversed. On remand,

the superior court is to issue an order to show cause and conduct further proceedings in 

accordance with section 1172.6, subdivision (d).

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

MENETREZ

J.