Filed 10/4/24 P. v. Adger CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent

,

v.

LAWRENCE DWAYNE ADGER

,

Defendant and Appellant

. B 3 3 0380

Los Angeles County Super. Ct. No. K

A 103542

APPEAL from an order of the Superior Court of
Los Angeles County, Rob B. Villeza , Judge

. Affirmed

.

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

, Assistant Attorney General, Noah P. Hill

, Heidi Salerno and
Nicholas J. Webster , Deputy Attorneys General, for Plaintiff
and Respondent.

_________________________2 Lawrence Dwayne Adger appeals from the trial court’s order denying his petition for resentencing under Penal Code
section 1172.6. 1 We affirm because the record of conviction
establishes Adger is ineligible for resentencing as a matter of law.
FACT S AND PROCEDURAL BACKGROUND

1. A sole perpetrator shoots the victim As the case resolved before trial, we take our facts from
the testimony at Adger’s preliminary hearing. 2 On October 24, 2013, around 9:40 p.m., Los Angeles Fire Department firefighter Jeffrey Darney was in his fire truck

on Caswell Avenue in Pomona when he heard what he thought

w ere fireworks. He turned around and “saw that it was actually somebody shooting some body else.” The shooter was holding

a gun, “physically pointing the gun at the other gentleman and shooting.” Darney first heard two shots; then after he turned
he “heard maybe another four or five after that as [he] was watching.”
The shooter ran south on Caswell. The fire truck also went south on Caswell, then turned on Holt. Darney saw the shooter run “across a big patch of grass.” The shooter “eventually caught up with” the fire truck, and “was, basically, running right next

1 References to statutes are to the Penal Code. Effective June 30, 2022, former section 1170.95 was renumbered section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)

2 We provide this summary only for background. As discussed below, “we need not credit the truth of any fact in the preliminary hearing transcript ” to decide this appeal. (See People v. Mares ( 2024) 99 Cal.App.5th 1158, 1167 ( Mares ), review granted May 1, 2024, S284232.)3

to [Darney] for about . . . several strides.” The truck sped up. The shooter “then proceeded to run right past the back of [Darney’s] truck where [he] was sitting and ran past [the firefighters] across Holt.” He then went across the street. At the preliminary hearing, Darney identified Adger

as “[t]he person who was firing the gun.”
2. The charges and plea agreement
T he People charged Adger with the attempted willful, deliberate, and premeditated murder of the shooting victim,
Jose Quintero

. In October 2014, Adger entered into a plea agreement with the People. The prosecution struck the allegation that the attempted murder was willful, deliberate,
and premeditated. The prosecution added allegations that Adger personally inflicted great bodily injury on Quintero and that
he committed the crime for the benefit of a criminal street gang. The parties agreed the court would sentence Adger to 20 years
in the state prison: the midterm of seven years for the attempted murder, plus three years for the personal infliction of great bodily injury, plus 10 years for the gang enhancement. Adger completed and signed a Tahl waiver form. 3 Adger
initial ed a box that stated, “I stipulate and agree that there
is a factual basis for my plea(s) and admission(s).” The district attorney explained all of Adger’s rights to him as well as the consequences of his plea. Adger confirmed he was entering
his plea “freely and voluntarily and because [he felt] it [was] in [his] best interest to do so.” The district attorney asked Adger’s counsel if he “stipulate[d] there is a factual basis for the plea

3 In re Tahl (1969) 1 Cal.3d 122.4

based on the preliminary hearing transcript, the probation report, and the arrest reports.” Counsel replied, “Yes.” Adger then pleaded no contest to count 1, attempted murder. The prosecutor asked him, “Do you admit that during the commission of count 1 you personally inflicted great bodily injury, in violation of section 12022.7 of the Penal Code?” Adger replied, “Yes.” Adger also admitted the gang allegation. Based on Adger’s admissions, the court found the personal infliction of great bodily injury and gang allegations to be true. The court sentenced Adger in accordance with his agreement with the prosecution.
3. Adger’s petition for resentencing On April 18 , 2022, Adger

— representing himself

— filed

a form petition for resentencing under section 1172.6. Adger checked boxes on the form stating (1) the information filed in
his case “allowed the prosecution to proceed under a theory of

. . . attempted murder under the natural and probable consequences doctrine,” (2) he was “convicted of

. . . attempted m urder

. . . following a trial or [he] accepted a plea offer in lieu of a trial at which [he] could have been convicted of . . . attempted murder ,” and (3) “[he] could not presently be convicted of . . . attempted murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019.” Adger also checked a fourth box
that stated, “Having presented a facially sufficient petition,
I request that this Court appoint counsel to represent me.”
The trial court appointed counsel for Adger

. The prosecution filed a response to Adger ’s petition , contending
he was in eligible for relief , as he “was not convicted under
the felony

- murder rule or under the natural and probable consequences doctrine because he was the actual shooter5

and the only theory of guilt was the defendant shot the victim
with the intent to kill.” Adger’s counsel filed a reply. Counsel asserted Adger
had made a prima facie case by checking the three boxes on
the form. Counsel noted the court was not permitted to engage
in factfinding at the prima facie stage. Counsel cited People

v. Davenport (2021) 71 Cal.App.5 th 476 ( Davenport ) for the proposition that the court could not consider “facts from the preliminary hearing transcript because the defendant did not stipulate to the transcript as the factual basis for his plea.” Counsel offered no sugge stion as to what would or could have been the target offense had Adger been tried on a natural
and probable consequence s theory. Nor did counsel offer

any suggestion as to how Adger may have been an accomplice

to the crime or who the shooter was. Counsel appeared before the court on April 19, 2023. Adger was not in court, nor apparently was he present by
Webex. 4 The court stated it had read the People’s response to Adger’s petition and Adger’s reply, “in addition to the documents in the case file, including the complaint,[ 5 ] the preliminary hearing transcript on January 21, 2014, records also including

4 There is no indication in the record that Adger’s counsel asked the court to order him out from state prison for the hearing. Nor did Adger’s counsel object to proceeding in her client’s absence. On appeal, Adger has not raised any issue about the court proceeding without him being present. (Cf. People v. Basler (2022) 80 Cal.App.5 th 46, 51, 57

– 58 [petitioner has constitutional right to be present at evidentiary hearing conducted after order to show cause has issued].)

5 The court presumably meant the information.6

the Tahl form, the felony plea and sentencing transcript dated October 29, 2014, the probation report, and the abstract of judgment.” The court asked Adger’s counsel if the defense had “any other documents that it feels the court should review in addressing this issue?” Co unsel replied, “No, Your Honor.” The court continued, “[I]t seems to me that the . . .
thrust of the defense view is that the current state of the record,
there is not sufficient documentation for the court to make a
determination as a matter of law that the defendant would be guilty of [attempted] murder in order to find that the defendant is not entitled to an evidentiary hearing at this point.” The

court noted the defense’s reliance on Davenport

. Defense counsel replied, “I don’t really have much to add beyond what was in my briefing. But the court can’t consider
the facts of the case. It can only consider what was the basis of the plea . . . .” Counsel mentioned Davenport as well as People v. Cooper (2020) 54 Cal.App.5 th 10 6

. The court and counsel discussed whether the court could rely on the transcript of the preliminary hearing. The court then asked, “Wasn’t the defendant’s plea also to the enhancement under 12022.7 of intentionally discharging a firearm causing
GBI [ sic ] ?” Neither the prosecutor nor defense counsel explained
to the court that Adger had admitted he personal ly inflict ed great bodily injury, not that he’d discharge d a firearm. Defense
counsel

— after apparently checking her file

— stated, “I don’t have the speci fic enhancement that my client pled to.” The reporter’s transcript does not reflect any response by the prosecutor to the court’s question

. Af ter counsel submitted, the court ruled:7 “ Based upon the court’s review of the record
of conviction and specifically according to
the preliminary hearing transcript, the

court considers the following facts that on
October 24, 2013, the defendant was identified by an eyewitness as the person who shot
and wounded a rival gang member. [ ¶] On
October 29, 2014, the defendant pleaded

no contest to a violation of section 664 [/]187 of the Penal Code, which is attempted murder, and for intentionally discharging a firearm causing great bodily inju ry [ sic ], as alleged
in Penal Code section 12022.7 and a gang
enhancement

. . . . [¶] Based on the nature
of the offense and the defendant as the sole attacker, the filed charges were not based on

a theory of aiding and abetting, natural and probable consequences, or felony murder. [¶]
Based on the court’s review of the available court records, the court finds that the defendant has failed to satisfy his burden
of making a prima facie showing that he is eligible for relief under 1172.6 of the Penal
Code. [¶] These records confirm that the
defendant was the sole attacker who shot
and wounded a rival gang member, and the defendant during the plea said, ‘No contest’

to attempted murder and the intentional discharge of a gun causing great bodily injury [ sic ]. [ ¶] There is nothing within the8 preliminary hearing transcript or otherwise that would suggest that someone else could have been a possible shooter. It only identifies
the defendant as the sole attacker. [¶] Thus,
his conviction was not based upon some imputed theory based upon aiding and abetting, felony murder, or natural and probabl e consequences.”

DISCUSSION

1. Governing law
Senate Bill No. 1437 (2017

– 2018 Reg. Sess.) (Senate Bill 1437) amended existing law on accomplice liability for murder

“ ‘ to ensure that murder liability is not imposed on a person who
is not the actual killer . . . . ’ ” ( People v. Gutierrez

- Salazar (2019) 38 Cal.App.5 th 411, 417, quoting Stats. 2018, ch. 1015, § 1 (f); § 189, subd. (e)(1).) To accomplish this goal, Senate Bill 1437 limited accomplice liability under the felony

- murder rule and eliminated the natural and probable consequences doctrine as it relates to murder, to ensure a person’s sentence is commensurate with his individual criminal culpability. ( See generally People

v. Reyes (2023) 14 Cal.5 th 981, 986; People v. Gentile (2020)
10 Cal.5 th 830, 842

– 843 ; People v. Lewis (2021) 1 1 Cal.5 th 952,
957 , 971 ( Lewis ) .) Senate Bill No. 775 (2021

– 20 22 Reg. Sess.), effective January 1, 2022, extended resentencing eligibility to
individuals convicted of attempted murder under the natural and probable consequences doctrine

. (Stats. 2021, ch. 551, § 1(a).) Section 1172.6 “applies by its terms only to attempted murders
based on the natural and probable consequences doctrine.” ( People v. Coley (2022) 77 Cal.App.5 th 539, 548.)9 Senate Bill 1437 also provided an avenue for a person convicted under the former law to petition the sentencing court

to vacate his conviction and be resentenced if he could no longer be convicted under the amended law. ( People v. Strong (2022)
13 Cal.5 th 698, 708; Lewis

, supra , 1 1 Cal.5 th at pp. 959

– 960.)
If the petitioner makes a prima facie showing of entitlement

to relief, the trial court must issue an order to show cause and hold an evidentiary hearing. At the hearing , the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is guilty under the amended law. (§ 1172.6, subds. (c), (d) (3) ; Strong , at pp. 708

– 709 .) At the prima facie stage, the trial court takes as true
the petitioner’s factual allegations and assesses whether the petitioner would be entitled to relief if those allegations were proved. ( Lewis

, supra , 11 Cal.5 th at p. 971.) However, “ [t] he record of conviction will necessarily inform the trial court’s prima facie inquiry under section 117 [2.6], allowing the court

to distinguish petitions with potential merit from those that

are clearly meritless.” ( Ibid .) We independently review the trial court’s determination
that Adger failed to make a prima facie showing. ( P eople v.
Williams (2022) 86 Cal.App.5 th 1244, 1251; People v. H arden (2022) 81 Cal.App.5 th 45, 52 ( Harden ) .)
2. Adger is ineligible for resentencing as a matter of law

a. In admitting that he personally inflicted great bodily injury on the victim, Adger conceded he was
the actual perpetrator of the attempted murder Adger asserts his “petition for resentencing satisfied the statutory criteria for a prima facie showing of eligibility for
relief.” He also states , “in assessing whether his resentencing10

petition made a prima facie showing of eligibility for relief,” the court may consider “readily ascertainable facts in the record of conviction,” including “the explicit terms of the plea agreement, including any admissions.” With that latter assertion, we agree. Here, Adger admitted as part of his plea deal that he personally inflicted great bodily injury on the victim, Quintero

, under section 12022.7. A true finding on an allegation under section 12022.7 that a defendant personally inflicted great bodily injury on the victim means that defendant is ineligible for relief under section 1172.6. ( Harden

, supra , 81 Cal.App.5 th at pp. 47

– 48, 55

– 56 .) “The natural meaning of ‘personally inflicted’ is
that the defendant [him ] self inflicted the injury.” ( Id . at p. 55.
See People v. Cole (1982) 31 Cal.3d 568, 578

– 579 [under section 12022.7, “personally inflict” means those who “directly perform ” the act causing physical injury].) We recognize the trial court referred to its belief that Adger
had admitted discharging a firearm that caused great bodily injury to the victim. The court cited the right statute

— section
12022.7

— but confused an allegation under section 12022.53, subdivision (d) (defendant discharged a firearm causing death

or great bodily injury) with section 12022.7. The court’s confusion is understandable, as firefighter Darney testified

at the preliminary hearing that he saw Adger shoot Quintero. Nor did either the pr osecutor or defense counsel correct the court. In any event, “ ‘ [o]n appeal, we do not review the validity of the trial court’s reasoning but only the propriety of the ruling itself. ’ ” ( Alameda County Waste Management Authority v. Waste
Connections US

, Inc . (2021) 67 Cal.App.5 th 1162, 1174 .)
As counsel had not cited Harden , we asked the attorneys to be prepared at oral argument to discuss the case. Adger’s counsel11

argued Harden was distinguishable because Harden went to trial and was convicted by a jury

. Counsel floated a theory Adger
never had raised before

— not in his petition or at any time in the more than two years since ; not in his briefing in the trial court

n or in his briefs on appeal

. Adger, counsel said, could have
aided and abetted another person in an assault on the victim and,
in the course of that aiding and abetting, inflicted great bodily injury on the victim. If the direct perpetrator

— counsel continued

— actually wanted to kill the victim, that person’s malice could then have been imputed to Adger under the natural and probable consequences doctrine

. When asked if there was anything in
the record to support this notion that that’s what happened

, counsel replied, “There isn’t.” But, counsel, said it was a
“factual scenario” within “the world of possibilities.”
T he deputy attorney general, in turn, w hen asked if
Harden would support the denial of a petition at t he prima facie stage in the absence of any reliance on the preliminary hearing testimony, replied, “So if all you had , it was totally in a vacu u m, was great bodily injury, then I don’t think that would be enough.”
Counsel stated the court c ould and should consider the preliminary hearing not for factfinding but rather for “fact pattern identification ”

— to see “what theories are available
based on th ese facts. ” Adger is correct that Harden’s case had gone to trial, and the appellate court in that case discussed the jury’s verdicts. However, the Harden court also stated :

“At oral argument, Harden’s attorney noted that in addition to being strangled , [victim] also
suffered fractured ribs. Counsel asserted it was therefore possible for a juror to find this12 enhancement true on a theory that Harden only fractured [victim’s] ribs and someone else strangled him. But Harden was not charged with assault or battery

. She was tried for murder, and to find Harden guilty of murder (as instructed under CALJIC No. 8.10), each juror must have found that she was the actual
killer.” ( Harden

, supra , 81 Cal.App.5th at

p. 55 .) Similarly, here, Adger was not charged with assault on Quintero.
We find the Harden court’s reasoning persuasive. In any event, and assuming for argument’s sake that the deputy attorney general’s comments at oral argument constitute
a concession that Harden alone is not enough, Adger is ineligible for resentencing as a matter of law for an additional reason.
b. N othing in the record of conviction suggests the involvement of an accomplice Adger contends the trial court erred in relying on
the preliminary hearing transcript to deny his petition at the prima facie stage

. As Adger notes, “[t]here is currently a split
in authority over whether such reliance is permissible under
the terms of the statute.” Compare Mares

, supra , 99 Cal.App.5th 1158; People v. Pickett (2023) 93 Cal.App.5th 982, review granted Oct. 11, 2023, S281643; People v. Patton (2023) 89 Cal.App.5th 649, review granted June 28, 2023, S279670; People v. Nguyen (2020) 53 Cal.App.5th 1154 with People v. Williams (2024)
103 Cal.App.5th 375 , review granted Sept. 11, 2024, S286314 ; Davenport

, supra , 71 Cal.App.5th 476; People v. Flores (2022)
76 Cal.App.5th 974.13 One year after we filed Patton , Division 2 of the Fourt h District Court of Appeal decided People v. Mares

, supra , 99 Cal.App.5th 1158, review granted May 1, 2024, S284232.
Mares

— like Adger’s case

— involved a plea agreement. Facing a murder charge, Mares pleaded guilty to voluntary manslaughter
with an enhancement for personal use of a deadly and dangerous weapon (a knife) . He later petitioned for resentencing and the trial court found he had failed to make a prima facie showing
of eligibility for relief . ( Id . at p p . 1161

– 1163 .) Justice Raphael, writing for the court, summarized the testimony given at Mares’ s preliminary hearing . Justice Raphael
stated the court “need not credit the truth of any fact in the preliminary hearing transcript.” ( Mares

, supra , 99 Cal.App.5th at p. 1167.) The court explained , “What matters is that the record supports no theory other than those where Mares was the actual killer, acting with no accomplice.” ( Ibid .) The transcript,
the court said, “shows the basis on which the district attorney

pursu ed the murder charge against Mares. Only an actual killer theory was offered.” ( Ibid .) Citing Lewis

, supra , 11 Cal.5th at p. 972, t he Mares

court noted, “Our analysis does not violate the prohibition on factfinding or weighing evidence when considering whether the record of conviction precludes a section 1172.6 prima facie case. ” ( Mares

, supra , 99 Cal.App.5th at p. 1170.) The court concluded “only that uncontradicted facts in the record preclude Mares’s
assertion that Senate Bill 1437’s changes mean he cannot
be convicted of murder. We need not find or weigh any facts,
because there are no facts to support Mares as the accomplice

to another killer. ” ( Id . at pp. 1170

– 1171.)14 The same is true here. There is simply nothing in the record to suggest the involvement of an accomplice, or that the
prosecutor pursued any theory other than that Adger was the actual perpetrator who acted alone and personally inflicted great bodily injury on the victim. Adger’s counsel admitted as much

at oral argument. (See Mares

, supra , 99 Cal.App.5th at p. 1161.) As the actual perpetrator of the attempted murder, Adger is ineligible for resentencing as a matter of law. (See People v. Garcia (2022) 82 Cal.App.5th 956, 969

– 971 [affirming
denial of resentencing because record of conviction “unequivocally establishes” defendant was the sole perpetrator and actual killer]; Harden

, supra , 81 Cal.App.5th at pp. 47

– 48, 56 [same];
see also People v. Delgadillo (2022) 14 Cal.5th 216, 233 [defendant “not entitled to any relief under section 1172.6” because he “was the actual killer and the only participant
in the killing”].)15 DISPOSITION We affirm the order denying Lawrence Dwayne Adger’s petition for resentencing.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON , J.

We concur:

EDMON , P. J.

BERSHON , J. 

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.