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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

LAWRENCE DWAYNE ADGER,

Defendant and Appellant.

B330380

Los Angeles County

Super. Ct. No. KA103542

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.

FACTS 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 

were fireworks. He turned around and “saw that it was actually 

somebody shooting somebody 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

The 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 

initialed 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 murder . . . 

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 ineligible 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 shooter 
5

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.5th 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 suggestion as to what would or could have 

been the target offense had Adger been tried on a natural 

and probable consequences 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.5th 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?” Counsel 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.5th 106.

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 personally inflicted

great bodily injury, not that he’d discharged a firearm. Defense 

counsel—after apparently checking her file—stated, “I don’t have 

the specific enhancement that my client pled to.” The reporter’s 

transcript does not reflect any response by the prosecutor to 

the court’s question.

After 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 injury [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 the 
8

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 

probable 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.5th 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.5th 981, 986; People v. Gentile (2020) 

10 Cal.5th 830, 842–843; People v. Lewis (2021) 11 Cal.5th 952, 

957, 971 (Lewis).) Senate Bill No. 775 (2021–2022 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.5th 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.5th 698, 708; Lewis, supra, 11 Cal.5th 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.5th 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. (People v. 

Williams (2022) 86 Cal.App.5th 1244, 1251; People v. Harden

(2022) 81 Cal.App.5th 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 resentencing 
10

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.5th 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 prosecutor 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.5th 1162, 1174.)

As counsel had not cited Harden, we asked the attorneys to 

be prepared at oral argument to discuss the case. Adger’s counsel 
11

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 

nor 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.”

The deputy attorney general, in turn, when asked if 

Harden would support the denial of a petition at the 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 vacuum, 

was great bodily injury, then I don’t think that would be enough.” 

Counsel stated the court could and should consider the 

preliminary hearing not for factfinding but rather for “fact 

pattern identification”—to see “what theories are available 

based on these 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 this 
12

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. Nothing 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 Fourth

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 pp. 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

pursued the murder charge against Mares. Only an actual killer 

theory was offered.” (Ibid.)

Citing Lewis, supra, 11 Cal.5th at p. 972, the 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.