Filed 12/30/20 P. v. Garcia CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RUBI FLORENCIA GARCIA,

Defendant and Appellant.

 H047574

 (Monterey County

 Super. Ct. No. SS031841B)

In 2018, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.)

(Senate Bill 1437). The bill, which became effective on January 1, 2019, amended Penal 

Code1sections 188 and 189 and narrowed the scope of culpability for murder. (See Stats. 

2018, ch. 1015, §§ 1-3; Cal. Const., art. IV, § 8, subd. (c); Gov. § 9600, subd. (a).) 

Section 188 concerns the requirement of malice, either express or implied, for purposes 

of murder (§ 187). Section 189 defines first degree and second degree murder. (See 

People v. Harris (2008) 43 Cal.4th 1269, 1295.) The enactment of Senate Bill 1437 also 

added section 1170.95. (See Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019.) This section 

provides a postjudgment procedure by which a person previously convicted of murder 

may seek, by means of a petition, to vacate his or her murder conviction and obtain 

resentencing under specified conditions.

Rubi Florencia Garcia filed a section 1170.95 petition, which was denied by the 

trial court at the prima facie showing stage. (See § 1170.95, subd. (c).) On appeal, 

1 All further statutory references are to the Penal Code.
2

Garcia asserts that the trial court erroneously denied the petition and that she is entitled to 

an evidentiary hearing, as statutorily provided.2 (See § 1170.95, subds. (c), (d).) We 

conclude that the trial court erred. The matter will be remanded for further proceedings.

I

Procedural History

The information, filed on October 14, 2003, charged Garcia and a codefendant, 

Glenn Barry Spillman, in count 1 with committing first degree murder in violation of 

section 187, subdivision (a), on or about May 21, 2003 by “willfully, unlawfully, [and] 

deliberately, with malice aforethought and with premeditation, murder[ing]” Javier Soto, 

a human being. The information further alleged that “the murder was perpetrated by 

means of discharging a firearm from a motor vehicle, intentionally at another person 

outside of the vehicle with the intent to inflict death as delineated in . . . [s]ection 189.” 

As to both Garcia and Spillman, the information also separately alleged that the murder 

charged in count 1 “was perpetrated by means of shooting a firearm from a motor vehicle 

with the intent to inflict great bodily injury” (§ 190, subd. (d) [§ 190(d)]). It alleged as to 

Garcia that “in the commission and attempted commission” of count 1, “a principal in 

said offense was armed with a firearm[], to wit: A HANDGUN, said arming not being an 

element of the above offense (§ 12022, subd. (a)(1)).”

3

2 Garcia asks this court to take judicial notice of the jury instructions given in her 

2004 trial. In her request, Garcia acknowledges that the 2004 jury instructions were not 

presented to the trial court in support of her section 1170.95 petition. We deny the 

request. “Reviewing courts generally do not take judicial notice of evidence not 

presented to the trial court. Rather, normally ‘when reviewing the correctness of a trial 

court’s judgment [or order], an appellate court will consider only matters which were part 

of the record at the time the judgment [or order] was entered.’ [Citation.]” (Vons 

Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3, abrogated on 

another ground in Bristol-Myers Squibb Co. v. Superior Court (2017) ___ U.S. ___, ___ 

[137 S.Ct. 1773, 1781].)

3 The information contained other firearm allegations against Spillman.
3

This court’s opinion in the direct appeal from the judgment of conviction (People 

v. Garcia (July 6, 2006, H028474) [nonpub. opn.]) stated: “One afternoon in May 2003, 

Javier Soto was shot and killed as he drove on Highway 101 near White Road in Salinas. 

Soto was alone in a grey Honda and was headed north when three shots were fired from a 

pickup truck going in the same direction. Appellant was driving the pickup truck which 

belonged to her co-defendant Glenn Barry Spillman. Spillman was seated next to 

appellant[,] and Antonio Garcia was next to Spillman.” The opinion recited that a jury 

had found her “guilty of first degree murder and [had] found a firearm enhancement true. 

(Pen. Code, §§ 187, 12022, subd. (a)(1).)” This court agreed with Garcia’s appellate 

contention that “the trial court erred in allowing the gang expert testimony and that [she]

was prejudiced by the admission of this evidence.” We reversed the judgment.

The minutes for September 29, 2006, showed that following remand and upon the 

prosecutor’s motion, count 1 of the information was amended to charge second degree 

murder and to also strike or delete the words “willful, deliberate, premeditated.” Those 

minutes reflected that Garcia entered a plea of guilty to the amended count 1 and 

admitted the section 190(d) allegation. Section 190(d) stated, and still states: “Every 

person guilty of murder in the second degree shall be punished by imprisonment in the 

state prison for a term of 20 years to life if the killing was perpetrated by means of 

shooting a firearm from a motor vehicle, intentionally at another person outside of the 

vehicle with the intent to inflict great bodily injury.” Garcia was sentenced to 20 years to 

life on count 1.

On March 22, 2019, Garcia filed in propria persona a petition for resentencing 

pursuant to section 1170.95. By the checking of boxes on a form petition, Garcia 

declared the following facts under penalty of perjury: (1) “[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”; (2) “I 

pled guilty or no contest to 1st or 2nd degree murder in lieu of going to trial because I 
4

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 (3) “I could 

not now be convicted of 1st or 2nd degree murder because of changes made to Penal 

Code [sections] 188 and 189, effective January 1, 2019.” Garcia also declared, “I was 

convicted of 1st degree felony murder[,] and I could not now be convicted because of 

changes to Penal Code [section] 189, effective January 1, 2019, for the following 

reasons . . . : [¶] I was not the actual killer[;] [¶] I did not, with the intent to kill, aid, 

abet, counsel, command, induce, solicit, request, or assist the actual killer in the 

commission of murder in the first degree[;] [¶] I was not a major participant in the 

felony or I did not act with reckless indifference to human life during the course of the 

crime or felony”[;] and [¶] [t]he victim of the murder was not a peace officer in the 

performance of his or her duties, or I was not aware that the victim was a peace officer in 

the performance of his or her duties and the circumstances were such that I should not 

reasonably have been aware that the victim was a peace officer in the performance of his 

or her duties.”4 (Emphasis omitted.)

The court appointed the county public defender to represent Garcia. After the 

public defender declared a conflict, the court relieved the public defender and appointed 

the alternate defender.

The People filed opposition to the petition. Their memorandum set forth a 

statement of facts based on our appellate opinion, which, as indicated, reversed the 

conviction. They contended that the evidence at the 2004 trial showed that codefendant

4 Garcia’s statement that she was convicted of first degree murder is incorrect 

because the conviction was reversed. The record shows that Garcia stands convicted of 

second degree murder by plea. Further, contrary to Garcia’s statement in her petition, the 

record does not reflect that there was “a prior determination by a court or jury that [she] 

was not a major participant and/or did not act with reckless indifference to human life 

under . . . [section] 190.2[, subdivision] (d)” (hereafter 190.2(d)). (See §§ 188, 

subd. (a)(3), 189, subd. (e)(3).) Those two inaccuracies do not defeat a prima facie 

showing. The People do not argue otherwise.
5

Spillman was the shooter, that “petitioner aided and abetted him in murdering Javier 

Soto,” and that “Spillman could not have murdered Mr. Soto had petitioner not pursued 

him in the vehicle, and then slowly driven parallel to Mr. Soto, allowing Spillman a clear 

shot” with the firearm that he had previously taken out of the vehicle’s glove 

compartment. The People argued that Garcia had “acted with implied malice based upon 

her actions of setting Spillman up to enable him to shoot at Mr. Soto” and that “[h]er 

second-degree murder plea directly fits into the still-valid definition of implied malice, in 

that petitioner intentionally committed an act (in concert with Spillman), the natural and 

probable consequences of which were dangerous to human life.” Attached as exhibits to 

their opposition were the information filed on October 14, 2004 (exhibit 1); our 2006

appellate opinion reversing the judgment (exhibit 2); the abstract of judgment based on 

Garcia’s subsequent change of plea (exhibit 3); the minutes from the change of plea 

hearing on September 29, 2006 (exhibit 4); a letter, dated June 20, 2008, from the 

Legislative Counsel Bureau (exhibit 5); and evidentiary portions of the reporter’s 

transcript from the 2004 trial (exhibit 6).

On June 14, 2019, the trial court denied Garcia’s section 1170.95 petition. The 

court explained: “In this case, the petitioner was the driver of the truck . . . . The shooter 

was in the middle of the front of the truck and there was a passenger on the side . . . of the 

truck. All three were in the front of the truck. [¶] An issue arose with the driver of 

another vehicle on the freeway. From testimony of other witnesses on the freeway and 

. . . the third occupant of the truck, it is indisputable that the petitioner intentionally 

pursued the other vehicle, positioned the truck in a manner that allowed the shooter to

extend his arm behind her back out of the window to ultimately shoot and kill the victim. 

[¶] Prior to the positioning of the truck at the time of the shooting, the shooter had 

removed the firearm from the glove compartment. [¶] At the jury trial, petitioner 

initially was convicted of first degree murder . . . with an arming enhancement. 

However, that conviction was reversed on appeal and petitioner then entered a plea to
6

second degree murder. [¶] There is more than sufficient evidence to indicate that 

petitioner acted with implied malice at a minimum. Additionally, she committed an act[,]

the natural and probable consequences of which were dangerous to human life. 

[¶] Petitioner would definitely be culpable of murder under the current state of the law 

based on the facts as presented at the jury trial.”5

II

Governing Law

A. Changes to the Law of Murder

Section 187, subdivision (a), defines murder as “the unlawful killing of a human 

being, or a fetus, with malice aforethought.” As amended effective January 1, 2019 

(Stats. 2018, ch. 1015, § 2), section 188, subdivision (a), now provides: “For purposes of 

[s]ection 187, malice may be express or implied. [¶] (1) Malice is express when there is 

manifested a deliberate intention to unlawfully take away the life of a fellow 

creature. [¶] (2) Malice is implied when no considerable provocation appears, or when 

the circumstances attending the killing show an abandoned and malignant 

heart. [¶] (3) Except [for felony murder liability] as stated in subdivision (e) of 

5

In their opposition, the People further argued that Senate Bill 1437 

unconstitutionally amended Proposition 7 (the 1978 Briggs initiative) and 

Proposition 115 (the 1990 Crime Victims Justice Reform Act). Given the trial court’s

conclusion that Garcia had not made a prima facie showing, the court found it 

unnecessary to resolve whether section 1170.95 was constitutional or constituted “an 

improper overreach by the legislature altering the will of the voters.” Many appellate 

courts have now concluded that Senate Bill 1437 did not unconstitutionally amend 

Proposition 7 or Proposition 115. (See, e.g., People v. Lombardo (2020) 54 Cal.App.5th 

553, 560-561 (3rd Dist.); People v. Nash (2020) 52 Cal.App.5th 1041, 1056-1069 (5th 

Dist.), review den. Oct. 21, 2020, S264379; People v. Bucio (2020) 48 Cal.App.5th 300, 

307-312 (2d Dist., Div. 6), review den. July 8, 2020, S262499; People v. Solis (2020) 46 

Cal.App.5th 762, 775-784 (4th Dist., Div. 3); People v. Cruz (2020) 46 Cal.App.5th 740, 

747-761 (4th Dist., Div. 3); People v. Lamoureux (2019) 42 Cal.App.5th 241, 251 (4th 

Dist., Div. 1), review den. Feb. 19, 2020, S259835; People v. Superior Court (Gooden) 

(2019) 42 Cal.App.5th 270, 280-288 (4th Dist., Div. 1), review den. Feb. 19, 2020, 

S259700.)
7

[s]ection 189, in order to be convicted of murder, a principal in a crime shall act with 

malice aforethought. Malice shall not be imputed to a person based solely on his or her 

participation in a crime.” (See People v. Gentile (Dec. 17, 2020, S256698) ___ Cal.5th 

___, ___ [2020 Cal. Lexis 8575, at *11] (Gentile).) The substantive change was the 

language in subdivision (a)(3). (Compare Stats. 2018, ch. 1015, § 2 with Stats. 1982, 

ch. 893, § 4.)

“Section 189 codifies the first degree felony-murder rule [citation]” (People v. 

Banks (2015) 61 Cal.4th 788, 810) and serves “a degree-fixing function.” (People v. 

Harris (2008) 43 Cal.4th 1269, 1295.) “[F]irst degree felony murder, along with the 

predicate crimes underlying it, is expressly described in section 189.” (People v. Powell

(2018) 5 Cal.5th 921, 943.) The amendment of section 189 by the passage of Senate 

Bill 1437 limited the scope of felony murder culpability.

6

(See Stats. 2018, ch. 1015, 

§ 3.) Section 189, subdivision (e), now provides: “A participant in the perpetration or 

attempted perpetration of a felony listed in subdivision (a) in which a death occurs is 

liable for murder only if one of the following is proven: [¶] (1) The person was the 

actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, 

aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the 

actual killer in the commission of murder in the first degree. [¶] (3) The person was a 

major participant in the underlying felony and acted with reckless indifference to human 

life, as described in subdivision (d) of Section 190.2.”7 (Italics added.) Subdivision (f) of 

6 Under section 189, subdivision (a), first degree murder includes—as it did at the 

time of the 2003 shooting—murder “perpetrated by means of discharging a firearm from 

a motor vehicle, intentionally at another person outside of the vehicle with the intent to 

inflict death.” (§ 189, subd. (a); Stats. 2002, ch. 606, § 1.)

7 An appellate court has concluded that “the standard under section 189, 

subdivision (e)(3) for holding . . . a defendant liable for [first degree] felony murder is the 

same as the standard for finding a special circumstance under section 190.2(d), as the 

former provision expressly incorporates the latter.” (In re Taylor (2019) 34 Cal.App.5th 

543, 561; see In re Scoggins (2020) 9 Cal.5th 667, 677 [explaining the subjective and 

objective elements of reckless indifference to human life within the meaning of 
8

section 189 makes subdivision (e) inapplicable “to a defendant when the victim is a peace 

officer who was killed while in the course of his or her duties, where the defendant knew 

or reasonably should have known that the victim was a peace officer engaged in the 

performance of his or her duties.”

As Garcia points out, even before the passage of Senate Bill 1437, the Supreme 

Court held that “an aider and abettor may not be convicted of first degree premeditated

murder under the natural and probable consequences doctrine.” (People v. Chiu (2014) 

59 Cal.4th 155, 158-159 (Chiu), superseded by statute on other grounds as stated in 

Gentile, supra, ___ Cal.5th at p. ___ [2020 Cal. Lexis 8575, at *16-21].) The court 

explained that “where the direct perpetrator is guilty of first degree premeditated murder, 

the legitimate public policy considerations of deterrence and culpability would not be 

served by allowing a defendant to be convicted of that greater offense under the natural 

and probable consequences doctrine.” (Id. at p. 166.) However, the court made clear that 

“[a]iders and abettors may still be convicted of first degree premeditated murder based on 

direct aiding and abetting principles. [Citation.]” (Id. at pp. 166-167.) “Under those 

principles, the prosecution must show that the defendant aided or encouraged the 

commission of the murder with knowledge of the unlawful purpose of the perpetrator and 

with the intent or purpose of committing, encouraging, or facilitating its commission. 

[Citation.]” (Id. at p. 167.)

As indicated, under section 188, as amended, malice can no longer “be imputed to 

a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) This 

change impacts the second degree felony-murder rule. (See People v. Elmore (2014) 59 

Cal.4th 121, 134, fn. 6 [“Malice is imputed in cases of felony murder . . . .”] (Elmore); 

see People v. Chun (2009) 45 Cal.4th 1172, 1182 [“The felony-murder rule makes a 

section190.2(d)]; People v. Clark (2016) 63 Cal.4th 522, 611 [discussing the ultimate 

question and factors pertaining to being a major participant within the meaning of 

section 190.2(d).]
9

killing while committing certain felonies murder without the necessity of further 

examining the defendant’s mental state”]; p. 1184 [“the felony-murder rule ‘acts as a 

substitute’ for conscious-disregard-for-life malice” and “ ‘imputes the requisite malice for 

a murder conviction’ ”] (Chun), superseded by statute as stated in People v. Lamoureux, 

supra, 42 Cal.App.5th at pp. 247-249.) The amendment of section 188 also eliminates

the natural and probable consequences doctrine in the context of second degree murder. 

(Gentile, supra, ___ Cal.5th at p. ___ [2020 Cal. Lexis 8575, at *2-3]; see Chiu, supra, 

59 Cal.4th at p. 164 [“culpability under the natural and probable consequences doctrine is 

vicarious”]; People v. Nguyen (1993) 21 Cal.App.4th 518, 531 [“The determination 

whether a particular criminal act was a natural and probable consequence of another 

criminal act aided and abetted by a defendant requires application of an objective rather 

than subjective test . . . [and] the issue does not turn on the defendant’s subjective state of 

mind”].) That is because “the natural and probable consequences doctrine authorizes 

precisely what Senate Bill 1437 forbids: it allows a factfinder to impute malice ‘to a 

person based solely on his or her participation in a crime.’ (§ 188(a)(3).)” (Gentile, 

supra, ___ Cal.5th at p. ___ [2020 Cal. Lexis 8575, at *21].) Accordingly, in Gentile, the 

California Supreme Court held that “Senate Bill 1437 bars a defendant from being 

convicted of second degree murder under a theory that the defendant aided and abetted a 

crime, the natural and probable consequence of which was murder.”8 (Id. at p. ___ [2020 

Cal. Lexis 8575, at *12]; see id. at pp. ___, ___ [2020 Cal. Lexis 8575, at *2-3, *29].)

Express and implied malice murder continue to be viable theories following the 

changes to sections 188 and 189 made by Senate Bill 1437. (See §§ 187-189.) Malice is 

“express ‘when there is manifested a deliberate intention unlawfully to take away the life 

8

In Gentile, the Supreme Court further held that “the procedure set forth in 

section 1170.95 is the exclusive mechanism for retroactive relief and thus the 

ameliorative provisions of Senate Bill 1437 do not apply to nonfinal judgments on direct 

appeal.” (Gentile, supra, ___ Cal.5th at p. ___ [2020 Cal. Lexis 8575, at *3]; see id. at 

p.___ [2020 Cal. Lexis 8575, at *30].)
10

of a fellow creature.’ (§ 188; People v. Mattison (1971) 4 Cal.3d 177, 182.)” (People v. 

Nieto Benitez (1992) 4 Cal.4th 91, 102 (Nieto Benitez).) Intent to kill may constitute 

express malice. (See People v. Gonzalez (2012) 54 Cal.4th 643, 653; People v. Swain

(1996) 12 Cal.4th 593, 601-602.) “ ‘The act of shooting a firearm toward a victim at 

close range in a manner that could have inflicted a mortal wound had the shot been on 

target is sufficient to support an inference of an intent to kill.’ (People v. Houston (2012) 

54 Cal.4th 1186, 1218, 144 Cal.Rptr.3d 716, 281 P.3d 799.)” (People v. Covarrubias

(2016) 1 Cal.5th 838, 892.)

“[I]mplied malice may be found when a defendant, knowing that his or her 

conduct endangers life and acting with conscious disregard of the danger, commits an act 

the natural consequences of which are dangerous to life. [Citation.] Thus, to invoke a 

classic example, a person who fires a bullet through a window, not knowing or caring 

whether anyone is behind it, may be liable for homicide regardless of any intent to kill.” 

(People v. Roberts (1992) 2 Cal.4th 271, 317; see Nieto Benitez, supra, 4 Cal.4th at 

p. 104.) “The primary difference between express malice and implied malice is that the 

former requires an intent to kill but the latter does not. (People v. Saille (1991) 54 Cal.3d 

1103, 1115.)” (People v. Soto (2018) 4 Cal.5th 968, 976 (Soto).)

An implied malice theory of murder, as distinguished from the natural and

probable consequences doctrine, “requires that the prosecution demonstrate the defendant 

in fact acted with malice. [Citation.]” (Nieto Benitez, supra, 4 Cal.4th at p. 106.) “The 

concept of implied malice has both a physical and a mental component. [Citation.] The 

physical component is satisfied by the performance of ‘ “an act, the natural consequences 

of which are dangerous to life.’ ’ [Citation.] The mental component . . . involves an act 

‘ “deliberately performed by a person who knows that his conduct endangers the life of 

another and who acts with conscious disregard for life. . . .” ’ [Citation.]” (Id. at pp. 106-

107.) “The very nature of implied malice . . . invites consideration of the circumstances 

preceding the fatal act. [Citations.]” (Id. at p. 107.)
11

B. A Postjudgment Petition to Vacate a Murder Conviction Pursuant to Section 1170.95

Section 1170.95, subdivision (a) (1170.95(a)) provides: “A person convicted of 

felony murder or murder under a natural and probable consequences theory may file a 

petition with the court that sentenced the petitioner to have the petitioner’s 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 felony 

murder or murder under the natural and probable consequences doctrine. [¶] (2) The 

petitioner was convicted of first degree or second degree murder following a trial or 

accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first 

degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or 

second degree murder because of changes to Section 188 or 189 made effective 

January 1, 2019.”

The petition must include, among other things, “[a] declaration by the petitioner 

that he or she is eligible for relief under this section, based on all the requirements of 

subdivision (a).” (§ 1170.95, subd. (b)(1)(A).) The petition must specify “[w]hether the 

petitioner requests the appointment of counsel.” (Id., subd. (b)(1)(C).) “If any of the 

information required by . . . subdivision [(b)(1)] is missing from the petition and cannot 

be readily ascertained by the court, the court may deny the petition without prejudice to 

the filing of another petition and advise the petitioner that the matter cannot be 

considered without the missing information.” (Id., subd. (b)(2).) An appellate court has 

concluded that “[t]he reference to ‘readily ascertained’ information indicates the 

legislature’s intent that the trial court consider reliable, accessible information—

specifically the record of conviction. [Citation.]” (People v. Torres (2020) 46 

Cal.App.5th 1168, 1177, review granted Jun. 24, 2020, S262011.)

Section 1170.95, subdivision (c) (hereafter 1170.95(c)) provides: “The court shall 

review the petition and determine if the petitioner has made a prima facie showing that 
12

the petitioner falls within the provisions of this section. If the petitioner has requested 

counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall 

file and serve a response within 60 days of service of the petition and the petitioner may 

file and serve a reply within 30 days after the prosecutor response is served. These 

deadlines shall be extended for good cause. If the petitioner makes a prima facie showing

that he or she is entitled to relief, the court shall issue an order to show cause.” (Italics 

added.)

This court has concluded that “[b]y its text, section 1170.95(c) thus requires the 

trial court to make two [prima facie] assessments.”9 (People v. Drayton (2020) 47 

Cal.App.5th 965, 975-976 (Drayton).) “The first is whether the petitioner has made a 

prima facie showing of eligibility for relief. A petitioner is eligible for relief if he or she 

makes a prima facie showing of the three criteria listed in section 1170.95(a)—namely he 

or she (1) was charged with murder ‘under a theory of felony murder or murder under the 

natural and probable consequences doctrine,’ (2) was convicted of first or second degree 

murder, and (3) can no longer be convicted of first or second degree murder ‘because of 

changes to Section 188 or 189 made effective January 1, 2019.’ (§ 1170.95(a)); ([People 

v. Verdugo (2020) 44 Cal.App.5th 320,] 328, 329[, review granted Mar. 18, 2020, 

S260493]; see also § 1170.95, subd. (b)(1)(A) [stating the petition must include a 

9 Another appellate court has concluded that a trial court evaluates whether the 

petitioner has made a prima facie showing only once: “[W]e read subdivision (c)’s first 

sentence—‘The court shall review the petition and determine if the petitioner has made a 

prima facie showing that the petitioner falls within the provisions of this section’—as a 

topic sentence summarizing the trial court’s task before issuing an order to show cause, 

and the following sentences to specify the procedure in undertaking that task.” (People v. 

Cooper (2020) 54 Cal.App.5th 106, 118 (Cooper), review granted Nov. 10, 2020, 

S264684.) The court “decline[d] to adopt the view that section 1170.95(c) requires two 

prima facie reviews—much less two reviews that are substantively different . . . .” (Ibid.; 

accord, People v. Daniel (2020) 57 Cal.App.5th 666, 674 (Daniel), petn. for review filed

Dec. 29, 2020, S266336.) Even if this view is correct, it does not affect our analysis in 

this case.
13

declaration by the petitioner that ‘he or she is eligible for relief under this section, based 

on all the requirements of subdivision (a)’].)” (Ibid.) This “prebriefing ‘first prima facie 

review’ is a ‘preliminary review of statutory eligibility for resentencing[.]” (People v. 

Tarkington (2020) 49 Cal.App.5th 892, 897 (Tarkington), review granted Aug. 12, 2020, 

S263219; but see Cooper, supra, 54 Cal.App.5th at pp. 118-119, review granted 

Nov. 10, 2020, S264684; Daniel, supra, 57 Cal.App.5th at p. 674, petn. for review filed 

Dec. 29, 2020, S266336.) “The court’s role at this stage is simply to decide whether the 

petitioner is ineligible for relief as a matter of law, making all factual inferences in favor 

of the petitioner. [Citation.]” (People v. Verdugo, supra, 44 Cal.App.5th at p. 329

(Verdugo), review granted Mar. 18, 2020, S260493; but see Cooper, supra, 54 

Cal.App.5th at pp. 118-119, review granted Nov. 10, 2020, S264684; Daniel, supra, 57 

Cal.App.5th at p. 674, petn. for review filed Dec. 29, 2020, S266336.)

If the trial court determines that the petitioner has made a prima facie showing of 

eligibility for relief, “the court must direct the prosecutor to file a response to the petition, 

permit the petitioner (through appointed counsel if requested) to file a reply and then 

determine, with the benefit of the parties’ briefing and analysis, whether the petitioner 

has made a prima facie showing he or she is entitled to relief. [Citation.]” (Verdugo, 

supra, 44 Cal.App.5th at p. 330, review granted Mar. 18, 2020, S260493; but see Cooper, 

supra, 54 Cal.App.5th at pp. 118-119, review granted Nov. 10, 2020, S264684; Daniel, 

supra, 57 Cal.App.5th at p. 674, petn. for review filed Dec. 29, 2020, S266336.) In 

conducting “the ‘second’ inquiry into the prima facie showing under section 1170.95(c)” 

(Drayton, supra, 47 Cal.App.5th at p. 976), “the trial considers whether the petitioner has 

made a prima facie showing of entitlement to (rather than eligibility for) relief.” (Ibid.; 

see Tarkington, supra, 49 Cal.App.5th at p. 897, review granted Aug. 12, 2020, S263219; 

but see Cooper, supra, 54 Cal.App.5th at pp. 118-119, review granted Nov. 10, 2020, 

S264684; Daniel, supra, 57 Cal.App.5th at p. 674, petn. for review filed Dec. 29, 2020, 

S266336.)
14

In Drayton, this court concluded that “with respect to the trial court’s assessment 

of whether the petitioner has made a prima facie showing of entitlement to relief 

under section 1170.95(c), . . . habeas corpus procedures are sufficiently similar to provide 

a reasonable construction of the meaning of the relevant language in subdivision (c). 

(See Verdugo, supra, 44 Cal.App.5th at p. 328[, review granted Mar. 18, 2020, 

S260493].)” (Drayton, supra, 47 Cal.App.5th at p. 980.) “Using the habeas corpus 

procedures as a guide to the legislative intent with respect to the court’s review of the 

‘ “prima facie showing that [the petitioner] is entitled to relief” ’ under 

section 1170.95(c), we conclude[d] that, when assessing the prima facie showing, the trial 

court should assume all facts stated in the section 1170.95 petition are true. (Verdugo, 

supra, 44 Cal.App.5th at p. 328, review granted Mar. 18, 2020, S260493; but see People 

v. Garcia (2020) 57 Cal.App.5th 100, 116, petn. for review filed Dec. 7, 2020, S265692.) 

The trial court should not evaluate the credibility of the petition’s assertions, but it need 

not credit factual assertions that are untrue as a matter of law—for example, a petitioner’s 

assertion that a particular conviction is eligible for relief where the crime is not listed 

in subdivision (a) of section 1170.95 as eligible for resentencing.” (Ibid.; see Tarkington, 

supra, 49 Cal.App.5th at p. 898, review granted Aug. 12, 2020, S263219 [“In this second 

prima facie evaluation, the [trial] court employs the familiar standard for issuance of an 

order to show cause in a habeas corpus proceeding.”]; but see People v. Garcia, supra, 57 

Cal.App.5th at p. 116, petn. for review filed Dec. 7, 2020, S265692.)

We explained in Drayton, “Just as in habeas corpus, if the record ‘contain[s] facts 

refuting the allegations made in the petition . . . the court is justified in making a 

credibility determination adverse to the petitioner.’ ([In re] Serrano [(1995)] 10 Cal.4th 

[447,] 456.) However, this authority to make determinations without conducting an 

evidentiary hearing pursuant to section 1170.95, subd[ivision] (d) is limited to readily 

ascertainable facts from the record (such as the crime of conviction), rather than 

factfinding involving the weighing of evidence or the exercise of discretion (such as 
15

determining whether the petitioner showed reckless indifference to human life in the 

commission of the crime).” (Drayton, supra, 47 Cal.App.5th at p. 980.) In evaluating 

the sufficiency of a petitioner’s prima facie showing under section 1170.95(c), a trial 

court can consider the record of conviction, including an appellate opinion in a 

petitioner’s direct appeal from the judgment of conviction, to determine whether factual 

assertions made in the petition are refuted as a matter of law. (See People v. Lewis

(2020) 43 Cal.App.5th 1128, 1137-1138 (Lewis)

10; see id. at p. 1136, fn. 7; but see 

People v. Garcia, supra, 57 Cal.App.5th at p. 116, petn. for review filed Dec. 7, 2020, 

S265692.)

In Drayton, we said that “because the petitioner does not bear the ultimate burden 

of proof under section 1170.95, ‘the superior court’s issuance of an order to show cause 

[under section 1170.95(c)] is only an assessment that petitioner has met a pleading 

burden, not a production burden.’ ” (Drayton, supra, 47 Cal.App.5th at p. 980.) Within 

the time limits specified, the court must “hold a hearing to determine whether to vacate 

the murder conviction and to recall the sentence and resentence the petitioner on any 

remaining counts in the same manner as if the petitioner had not been previously been 

sentenced, provided that the new sentence, if any, is not greater than the initial 

sentence.”11 (§ 1170.95, subd. (d)(1).)

10 The Supreme Court granted review in Lewis, supra, 43 Cal.App.5th 1128, 

review granted March 18, 2020, S260598. The court limited review to the following 

issues: “(1) May superior courts consider the record of conviction in determining 

whether a defendant has made a prima facie showing of eligibility for relief under Penal 

Code section 1170.95?” and “(2) When does the right to appointed counsel arise under 

Penal Code section 1170.95, subdivision (c)?” 

(<https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_i

d=2311967&doc_no=S260598&request_token=NiIwLSEmXkg%2FWzBFSCJdSEtIIDw

0UDxTJSJeUzNRMCAgCg%3D%3D> [as of Dec. 30, 2020], archived at 

<http://perma.cc/BE6E-YTXP>.)

11 However, “[t]he parties may waive a resentencing hearing and stipulate that the 

petitioner is eligible to have his or her murder conviction vacated and for resentencing.” 

(§ 1170.95, subd. (d)(2).) “If there was a prior finding by a court or jury that the 
16

In Drayton, this court said that “[o]nce the trial court issues the order to show 

cause, the burden of proof shifts to the prosecution.” (Drayton, supra, 47 Cal.App.5th at 

p. 980.) To be most accurate, the petitioner has the burden of stating the prima facie case 

for relief—a pleading burden—but the prosecution has the burden of proof. (§ 1170.95, 

subds. (c), (d)(3); Drayton, supra, 47 Cal.App.5th at p. 980; cf. People v. Duvall (1995) 9 

Cal.4th 464, 474 [habeas petitioner has the “initial burden of pleading adequate grounds 

for relief”].)

“At the hearing to determine whether the petitioner is entitled to relief, the burden 

of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the 

petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of 

proof, the prior conviction, and any allegations and enhancements attached to the 

conviction, shall be vacated and the petitioner shall be resentenced on the remaining 

charges. The prosecutor and the petitioner may rely on the record of conviction or offer 

new or additional evidence to meet their respective burdens.” (§ 1170.95, subd. (d)(3), 

italics added.)

“If [a] petitioner is entitled to relief pursuant to [section 1170.95], murder was 

charged generically, and the target offense was not charged, the petitioner’s conviction 

shall be redesignated as the target offense or underlying felony for resentencing purposes. 

Any applicable statute of limitations shall not be a bar to the court’s redesignation of the 

offense for this purpose.” (§ 1170.95, subd. (e).)

In Drayton, this court determined that its “analysis of the trial court’s order 

focuse[d] on the trial court’s interpretation of section 1170.95(c),” which meant that 

review was “de novo.” (Drayton, supra, 47 Cal.App.5th at p. 981.) The proper 

construction of a statute is a question of law, which reviewing courts consider de novo. 

petitioner did not act with reckless indifference to human life or was not a major 

participant in the felony, the court shall vacate the petitioner’s conviction and resentence 

the petitioner.” (Ibid.)
17

(See People v. Grimes (2016) 1 Cal.5th 698, 712.) Even under an abuse of discretion 

standard of review, a trial court’s conclusions of law are reviewed de novo (Packer v. 

Superior Court (2014) 60 Cal.4th 695, 710), and the trial court’s exercise of its discretion 

is “ ‘ “subject to the limitations of legal principles governing the subject of its action.” ’ 

[Citation.]” (People v. Eubanks (1996) 14 Cal.4th 580, 595.) “ ‘[A]ll exercises of legal 

discretion must be grounded in reasoned judgment and guided by legal principles and 

policies appropriate to the particular matter at issue.’ [Citation.]” (People v. Superior 

Court (Alvarez) (1997) 14 Cal.4th 968, 977.) “Where the trial court’s decision rests on 

an error of law, . . . the trial court abuses its discretion.” (People v. Superior Court

(Humberto S.) (2008) 43 Cal.4th 737, 742.)

The issues raised in this appeal involve questions of law rather than review of any 

judicial exercise of discretion, and we apply the de novo standard of review.

III

Discussion

A. Judicial Factfinding Prohibited at the Prima Facie Showing Stage

Garcia argues that “a trial court may summarily deny a section 1170.95 petition, 

without ordering a hearing, only when the record of conviction establishes without 

contradiction that a petitioner is ineligible for relief as a matter of law.” Citing Drayton, 

she states that “the trial court’s authority to make factual findings without conducting an 

evidentiary hearing ‘is limited to readily ascertainable facts from the record (such as the 

crime of conviction), rather than factfinding involving the weighing of evidence or the 

exercise of discretion (such as determining whether the petitioner showed reckless 

indifference to human life in the commission of the crime).’ ” (See Drayton, supra, 47 

Cal.App.5th at p. 980.)

This court has already concluded that “[i]n assessing the petitioner’s prima facie 

showing, the trial court should not weigh evidence or make credibility determinations.” 

(Drayton, 47 Cal.App.5th at p. 968.) In other words, at the preliminary “prima facie 
18

showing” stage, judicial factfinding is prohibited. (See id. at pp. 980, 982; see also 

§ 1170.95(c).) The questions at the prima facie stage in this case were (1) whether the 

petitioner’s declaration in support of a petition stated a prima facie case of entitlement to 

relief (§ 1170.95, subds. (a)-(c)) and (2) whether any essential allegation of the petition 

was conclusively negated or refuted as a matter of law, which defeated the prima facie 

case.

B. Natural and Probable Consequences Theory in the Murder Context

As indicated, the trial court in ruling on the petition stated that “[t]here is more 

than sufficient evidence to indicate that petitioner acted with implied malice at a 

minimum” and that she “committed an act the natural and probable consequences of 

which were dangerous to human life.” Relying on those judicial remarks, Garcia now 

asserts that “the record plainly reflects that trial court’s ruling is predicated on its failure

to understand that [Senate Bill] 1437 abrogated the natural and probable consequences 

doctrine as a basis of liability for second degree murder.”

While the record does not reflect that the trial court relied on the natural and 

probable consequences doctrine in denying her section 1170.95 petition, it does appear 

that the court considered the theory of implied malice murder. Garcia claims that since 

Senate Bill 1427 completely abolished the natural and probable consequences doctrine as 

a basis for a second degree murder conviction, an aider and abettor cannot be held liable 

for murder under the natural and probable consequences doctrine or on an implied malice 

theory. She “submits that in the wake of [Senate Bill] 1437’s abolition of the natural and 

probable consequences doctrine, aiding and abetting cannot be committed with implied 

malice, because implied malice is inconsistent with the specific intent element of direct 

aiding and abetting.” Garcia maintains that a person “cannot specifically intend to aid 

and abet a murder by implied malice” and that “[b]ecause indirect aiding and abetting on 

a theory of implied malice has been abolished, [her] conviction must be vacated unless 

her express malice is proven beyond a reasonable doubt” at an evidentiary hearing.
19

Before the changes made by the enactment of Senate Bill 1437, there were “two 

distinct forms of culpability for aiders and abettors. (Chiu, supra, 59 Cal.4th at p. 158.) 

“First, an aider and abettor with the necessary mental state [was] guilty of the intended 

crime. Second, under the natural and probable consequences doctrine, an aider and 

abettor [was] guilty not only of the intended crime, but also “for any other offense that 

was a ‘natural and probable consequence’ of the crime aided and abetted.” ’ [Citation.]” 

(Ibid.)

Although the natural and probable consequences doctrine and the definition of 

implied malice both contain the phrase “natural and probable consequences,” these 

theories of culpability are distinct. (See People v. Soto (2020) 51 Cal.App.5th 1043, 

1056-1057, review granted Sept. 23, 2020, S263939.) Garcia has cited no evidence to 

suggest that the Legislature, in passing Senate Bill 1437, was seeking to do away with 

implied malice murder. Section 188, as amended, continues to state that “malice may be 

express or implied.” (§ 188, subd. (a).) It mandates that “in order to be convicted of 

murder, a principal in a crime shall act with malice aforethought” (§ 188, subd. (a)(3)), 

except as stated in section 189, subdivision (e). (§ 188, subd. (a)(3).) (See ante, fn. 7.) 

“Malice is implied when an unlawful killing results from a willful act, the natural and 

probable consequences of which are dangerous to human life, performed with conscious 

disregard for that danger. [Citations.]” (Elmore, supra, 59 Cal.4th at p. 133, italics 

added.)

In a homicide, “the dividing line between the actual perpetrator and the [direct] 

aider and abettor is often blurred. It is often an oversimplification to describe one person 

as the actual perpetrator and the other as the aider and abettor. When two or more 

persons commit a crime together, both may act in part as the actual perpetrator and in part 

as the [direct] aider and abettor of the other, who also acts in part as an actual 

perpetrator.” (McCoy, supra, 25 Cal.4th at p. 1120.) “[I]n a homicide prosecution not

involving felony murder or the natural and probable consequences doctrine, the 
20

aider/abettor’s guilt is based on the combined acts of all the principals and on the 

aider/abettor’s own knowledge and intent.” (People v. Amezcua and Flores (2019) 6 

Cal.5th 886, 917, italics added.) “[W]henever a person aids, or perhaps induces, another 

to kill, whether that other person is entirely innocent . . . or less culpable . . . or, 

potentially, more culpable, . . . each person’s guilt would be based on the combined actus 

reus of the participants, but also solely on that person’s own mens rea.” (People v. 

McCoy (2001) 25 Cal.4th 1111, 1121 (McCoy) [“Each person’s level of guilt would 

‘ “float free.” ’ [Citation.]”].) “If the mens rea of aider and abettor is more culpable than 

the actual perpetrator’s, the aider and abettor may be guilty of a more serious crime than 

the actual perpetrator.” (Id. at p. 1120.)

Since a direct aider and abettor’s “guilt [in a homicide prosecution] is based on a 

combination of the direct perpetrator’s acts and the aider and abettor’s own acts and own

mental state” (McCoy, supra, 25 Cal.4th at p. 1117; see id. at pp. 1118-1120), the direct 

“aider and abettor’s guilt for the intended crime is not entirely vicarious.” (Id. at 

p. 1117.) In other words, guilt is not imputed to the direct aider and abettor of a killing 

“based solely on his or her participation in a crime.” (§ 188, subd. (a)(3), italics added.)

In contrast, [a]ider and abettor culpability under the natural and probable 

consequences doctrine is vicarious in nature. [Citations.]” (Chiu, supra, 59 Cal.4th at 

p. 164.) “Aider and abettor liability under the natural and probable consequences 

doctrine does not require assistance with or actual knowledge and intent relating to the 

nontarget offense, nor subjective foreseeability of either that offense or the perpetrator’s 

state of mind in committing it. [Citation.] It only requires that under all of the 

circumstances presented, a reasonable person in the defendant’s position would have or 

should have known that the nontarget offense was a reasonably foreseeable consequence 

of the act aided and abetted by the defendant. [Citation.]” (Id. at pp. 165-166, italics 

added.) Until the recent changes in the law of murder, “[s]o long as the direct perpetrator 

possessed malice, and the killing was a natural and probable consequence of the crime 
21

the defendant aided and abetted, it did not matter whether the defendant intended to kill 

or acted with conscious disregard for human life. (Chiu, supra, 59 Cal.4th at pp. 165-

166.)” (Gentile, supra, ___ Cal.5th at p. ___ [2020 Cal. Lexis 8575, at *15-16].)

We find it unnecessary to resolve defendant’s claims that (1) the elimination of 

second degree murder liability under the natural and probable consequences doctrine

means that a person who is not the actual killer cannot be guilty of second degree murder 

based on the person’s implied malice and that (2) such person is culpable of second 

degree murder only if he or she acted as a direct aider and abettor with express malice. 

At the prima facie showing stage under section 1170.95, courts do not consider the 

theories upon which the prosecution might be able “to prove, beyond a reasonable doubt, 

that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).) Instead, 

courts assess only whether the petitioner made a prima facie showing of entitlement to 

relief. (See § 1170.95(c).) However, we do note that in Gentile, the Supreme Court 

stated that “notwithstanding Senate Bill 1437’s elimination of natural and probable 

consequences liability for second degree murder, an aider and abettor who does not 

expressly intend to aid a killing can still be convicted of second degree murder if the 

person knows that his or her conduct endangers the life of another and acts with 

conscious disregard for life.” (Gentile, supra, ___ Cal.5th at p. ___ [2020 Cal. Lexis

8575, at *27].)

C. Substantial Evidence Standard of Review Does Not Apply at the Prima Facie Stage

Garcia argues that the trial court erred by applying a deferential appellate standard 

of review—namely, the sufficiency of the evidence standard—at the prima facie showing 

stage. She asserts that “[b]ecause [Senate Bill] 1437 narrowed the statutory definition of 

murder and created a retroactive mechanism to challenge . . . prior convictions, it would 

be fundamentally unfair to permit a court to deny a petition for resentencing on the 

grounds that a valid basis for conviction is merely supported by substantial evidence.”
22

The People suggest that Garcia misconstrues the basis for the court’s ruling. They 

claim that the court was not applying the substantial evidence test when it stated that 

there was “more than sufficient evidence to indicate that [Garcia] acted with implied 

malice at a minimum,” that Garcia “committed an act the natural and probable 

consequences of which were dangerous to human life,” and that Garcia “would definitely 

be culpable of murder under the current state of the law based on the facts as presented at 

the jury trial.” (Italics added.)

The People’s assertion on appeal that the 2004 evidentiary trial record does not 

support her statement as to the third condition, even if true, is not relevant or 

determinative at the prima facie stage. As indicated, at the prima facie stage, a court 

must assume that a petitioner’s legally unrefuted statements are true, and it may not 

engage in credibility determinations, the weighing of evidence, or factfinding. (See 

Drayton, supra, 47 Cal.App.5th at pp. 968, 980, 982; but see People v. Garcia, supra, 57 

Cal.App.5th at p. 116, petn. for review filed Dec. 7, 2020, S265692.)

The record reflects that the trial court misunderstood its function at the prima facie 

showing stage. We reiterate that in ruling on a petition at the prima facie showing stage, 

a trial court merely determines whether any of the petitioner’s essential factual statements 

are negated or refuted as a matter of law and whether the remaining statements, assuming 

their truth, preliminarily establish that the petitioner is “entitled to relief” under section 

1170.95(c). (See Drayton, supra, 47 Cal.App.5th at pp. 968, 980; but see People v. 

Garcia, supra, 57 Cal.App.5th at p. 116, petn. for review filed Dec. 7, 2020, S265692.) 

Evidence adduced at Garcia’s 2004 trial—which resulted in a judgment of conviction, 

which this court reversed—does not render any of the petition’s essential factual 

assertions untrue as a matter of law. (See Drayton, supra, at p. 980.)

At the prima facie stage, a trial court’s application of the substantial evidence test 

or its own assessment of testimony adduced at an earlier trial is inconsistent with the 

procedure set forth in section 1170.95(c), which merely requires petitioner to make “a 
23

prima facie showing.” As this court has recognized, at this stage, a petitioner has only a 

pleading burden, not the burden of proof. (See Drayton, supra, 47 Cal.App.5th at 

p. 980.) Thus, a trial court evaluates the petition at this stage by asking whether the 

petition’s legally unrefuted factual statements, if true, would entitle the petitioner to 

relief. (Id. at pp. 980, 982; but see People v. Garcia, supra, 57 Cal.App.5th at p. 116, 

petn. for review filed Dec. 7, 2020, S265692) At the hearing stage, in contrast, the 

prosecution must “prove, beyond a reasonable doubt, that the petitioner is ineligible for 

resentencing.” (§ 1170, subd. (d)(3).) In this case, the trial court erred by engaging in its 

own assessment of the evidence adduced at the 2004 trial at the prima facie showing 

stage. (See § 1170.95(c).)

D. The Effect of Garcia’s Guilty Plea and Admission of Section 190(d) Allegation

Garcia maintains that the only facts established by her guilty plea are the admitted 

allegations of the information. She acknowledges that “[b]y and through her plea, [she] 

admitted that she unlawfully, and with malice aforethought, committed the second degree 

murder of Javier Soto on or about May 21, 2003, and that the murder was perpetrated by 

means of discharging a firearm from a motor vehicle, intentionally at another person 

outside of the vehicle” within the intent required by section 190(d)—i.e., intent to inflict 

great bodily injury.

12

 Garcia claims that her acceptance of “legal responsibility for an 

unlawful killing with malice aforethought” did not establish the underlying form of 

malice.

Garcia asserts that “the issue of whether [she] is entitled to relief boils down to 

whether her culpability [was] based on direct aiding and abetting with express malice, or 

implied malice as a natural and probable consequence of aiding and abetting a nontarget 

12 At one point, Garcia erroneously indicated in her opening brief that at the 

change of plea hearing, she admitted that “the murder was perpetrated by means of 

discharging a firearm from a motor vehicle, intentionally at another person outside of the 

vehicle, with the intent to inflict death.” (Italics added.)
24

offense.” She argues that since Senate Bill 1437 abolished the natural and probable 

consequences doctrine, she is entitled to an evidentiary hearing.

The People reason that Garcia’s plea admitted that “she committed the murder 

with the mens rea of malice aforethought” and that her plea “necessarily admitted that she 

committed second degree murder with either express or implied malice.” They further 

contend that regardless of any misunderstanding of the trial court as to the proper 

standard for considering Garcia’s petition, Garcia’s “plea necessarily admitted that she 

committed murder with the mens rea of malice aforethought.” On this basis, they suggest 

that Garcia “failed to make a prima facie showing that section 1170.95 applied to her”

and that the trial court’s ruling was correct in law, regardless of the reasons it gave. (See 

People v. Zapien (1993) 4 Cal.4th 929, 976.) They argue that consequently Garcia is not 

entitled to an evidentiary hearing under section 1170.95, subdivision (d).

“A guilty plea admits every element of the charged offense and constitutes a 

conviction [citations].” (In re Chavez (2003) 30 Cal.4th 643, 649; see § 1016, subd. 3.) 

A defendant’s guilty plea in effect “concedes that the prosecution possesses legally 

admissible evidence sufficient to prove [the] defendant’s guilt beyond a reasonable 

doubt” (People v. Turner (1985) 171 Cal.App.3d 116, 125; but see § 1538.5, subd. (m))

under then existing law.

However, Garcia’s guilty plea says nothing about whether malice could be 

imputed to her under then existing law, regardless of her subjective mental state. The 

People have not disputed that at the time Garcia pleaded guilty to second degree murder, 

the prosecution could have, upon any retrial, sought to convict her under the felony 

murder rule or the natural and probable consequences doctrine. Since “an accusatory 

pleading charging murder need not specify the theory of murder upon which the 

prosecution intends to rely” (People v. Abel (2012) 53 Cal.4th 891, 937) and “a murder 

charge under section 187 places the defense on notice of, and allows trial and conviction 

on, all degrees and theories of murder” (People v. Contreras (2013) 58 Cal.4th 123, 149), 
25

any reliance by the People on the fact that the information to which Garcia pleaded guilty 

did not state a predicate felony for felony murder or any nonhomicide target offense is 

misplaced. Moreover, the mere fact that that count 1 of the information, as amended, 

retained the words “malice aforethought” is not determinative since the very definition of 

murder is “the unlawful killing of a human being, or a fetus, with malice aforethought.” 

(§ 187, subd. (a), italics added.)

We see nothing to suggest that Legislature intended a guilty plea to murder to 

necessarily foreclose relief under section 1170.95. As stated, the section sets forth three 

conditions for establishing entitlement for relief, including the second condition that 

“[t]he petitioner was convicted of first degree or second degree murder following a trial 

or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for 

first degree or second degree murder.” (§ 1170.95(a)(2), italics added.) On appeal, the

People make no claim that the petition insufficiently stated the first condition13 or the 

second condition.14

Moreover, Garcia entered her guilty plea before the Supreme Court held in 2009 

that “all assaultive-type crimes, such as a violation of section 246, merge with the 

13 In the trial court, the People conceded that Garcia had shown that 

“[a] complaint, information, or indictment was filed against the petitioner that allowed 

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

and probable consequences doctrine.” (§ 1170.95(a)(1).)

14 As indicated, by the checking of a box on her form petition, Garcia stated: “I 

pled guilty or no contest to 1st or 2nd degree murder 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.” That language 

did not quite say that she had “accepted a plea offer in lieu of a trial at which the 

petitioner could be convicted for first degree or second degree murder.” 

(§ 1170.95(a)(2).) However, the People have not objected to the petition’s phrasing,

suggested that Garcia did not accept a plea offer, or asserted that she did not make a 

prima facie showing as to the second condition. Rather, in their opposition filed in the 

trial court, they stated that Garcia had entered a plea to second degree murder for a 

stipulated prison term and conceded that her petition satisfied the second eligibility 

requirement.
26

charged homicide and cannot be the basis for a second degree felony-murder instruction.” 

(Chun, supra, 45 Cal.4th at p. 1178.) If Garcia had not pleaded guilty to second degree 

murder, upon retrial the prosecution could have relied on the then valid felony murder 

rule and argued that she was culpable for a violation of section 246.

15 And it could have 

also relied on the then valid doctrine of natural and probable consequences and argued 

that she had directly aided and abetted a violation of section 246 or section 417.3,

16 the 

natural and probable consequences of which included murder.

The contested question before the trial court concerned the adequacy of Garcia’s 

prima facie showing that she “could not be convicted of first or second degree murder 

because of changes to Section 188 or 189 made effective January 1, 2019.” 

(§ 1170.95(a)(3).) Her declaration stated exactly that—to wit, “I could not now be 

convicted of 1st or 2nd degree murder because of changes made to Penal Code 

[sections] 188 and 189, effective January 1, 2019.” Garcia’s guilty plea did not refute 

that statement. The People have not demonstrated, either below or on appeal, that this 

statement was negated or refuted as a matter of law. We agree with Garcia that her 

“concession” by plea that “the prosecution had sufficient evidence to convict her of 

second degree murder in 2006” did not establish that if she were tried after 

15 Section 246 provided in 2003, and still provides: “Any person who shall 

maliciously and willfully discharge a firearm at an . . . occupied motor vehicle . . . is 

guilty of a felony . . . .” Prior to Chun, the California Supreme Court stated as to second 

degree felony-murder that “ ‘[a] homicide that is a direct causal result of the commission 

of a felony inherently dangerous to human life (other than the . . . felonies enumerated in 

[section] 189) constitutes at least second degree murder.’ [Citation.]” (People v. Howard

(2005) 34 Cal.4th 1129, 1135.) “[S]hooting at a vehicle that is actually occupied clearly 

is inherently dangerous.” (Chun, supra, 45 Cal.4th at p. 1188.)

16 Section 417.3 then provided, and still provides: “Every person who, except in 

self-defense, in the presence of any other person who is an occupant of a motor vehicle 

proceeding on a public street or highway, draws or exhibits any firearm, whether loaded 

or unloaded, in a threatening manner against another person in such a way as to cause a 

reasonable person apprehension or fear of bodily harm is guilty of a felony . . . .”
27

January 1, 2019, the People would be able to prove that she was guilty of murder beyond 

a reasonable doubt.

We conclude that the trial court’s erred by denying the petition and finding that 

Garcia had not made a prima facie showing of entitlement to relief based on its own 

assessment of the evidence adduced at Garcia’s 2004 trial. In light of our conclusion, we 

find it unnecessary to resolve Garcia’s remaining appellate contentions, including an

ineffective assistance of counsel claim.

17

 We conclude that the matter must be remanded 

to allow the trial court to consider the prosecution’s constitutional arguments. (See ante, 

fn. 5.) If those constitutional arguments are abandoned by the prosecution or the trial 

court finds them without merit, an order to show cause must be issued. (See § 1170.95(c) 

[“If the petitioner makes a prima facie showing that he or she is entitled to relief, the 

court shall issue an order to show cause.”].)

DISPOSITION

The order denying the section 1170.95 petition is reversed. The matter is 

remanded for further proceedings consistent with this opinion.

17 Garcia devotes considerable discussion to the possible standard that a trial court 

must apply at a hearing on a petition, after it had determined that a petitioner had made a 

prima facie showing of entitlement to relief. We do not reach that issue, which is 

premature in this case. Neither do we address her suggestion that at any hearing on her

petition, the trial court would determine the factual basis and theory of malice underlying 

her guilty plea.
_________________________________

ELIA, J.

WE CONCUR:

_______________________________

PREMO, Acting P.J.

_______________________________

BAMATTRE-MANOUKIAN, J.

People v. Garcia

H047574