Filed 8/28/23; Certified for Publication 9/25/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES HARRIS FISHER,

Defendant and Appellant.

 B323408

 (Los Angeles County

 Super. Ct. No. A389396)

APPEAL from an order of the Superior Court of 

Los Angeles County, Shelly Torrealba, Judge. Affirmed as 

modified.

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, Senior 

Assistant Attorney General, Zee Rodriguez and Charles S. Lee, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

James Harris Fisher appeals the trial court’s order 

summarily denying his petition for vacatur of two convictions of 

murder and one conviction of attempted murder, and 

resentencing under Penal Code section 1172.6.1

On appeal, Fisher contends that the trial court’s denial of 

his petition without issuing an order to show cause or holding an 

evidentiary hearing violated section 1172.6 and his state and 

federal constitutional rights to due process.

As modified, we affirm the trial court’s order.

FACTS AND PROCEEDURAL HISTORY

On May 12, 1983, the Los Angeles County District 

Attorney’s Office filed an information charging Fisher with the 

first degree murder of Richard Edward Harrison (§ 187, count 1), 

the second degree murder of Jerrie Ann Dabney (§ 187, count 2), 

the attempted murder of Debra Thomas (§§ 664 & 187, count 3), 

the attempted murder of Romona Edwin Dilworth (§§ 664 & 187, 

count 4), and burglary (§ 459, count 5). The information included 

special circumstance allegations that Fisher committed more 

than one murder (§ 190.2, subd. (a)(3)), and that the murders 

were committed while Fisher was engaged in a burglary (§ 190.2, 

subd. (a)(17)). The information also alleged as to each count that 

Fisher personally used a firearm (§ 12022.5). 

On October 13, 1983, Fisher pleaded guilty to first degree

murder in count 1, second degree murder in count 2, and 

attempted murder in count 3. He admitted the truth of the 

1 All further statutory references are to the Penal Code.
3

personal firearm use enhancements in each count. Counts 4 and 

5 and the special circumstance allegations were dismissed 

pursuant to the plea. 

At the plea colloquy, the prosecutor addressed Fisher:

“[Prosecutor]: Let me tell you basically what the charges 

are in this case. 

“On March 31, 1983, it’s alleged that you entered an 

apartment at 910-1/2 West 94th Street, and that during that 

evening, events took place where you eventually shot and killed 

Richard Harrison, a gentleman named in Count I, and that you 

shot and killed a lady by the name of Dabney in Count II, and 

that you shot and injured a lady by the name of Deborah Thomas, 

the lady in Count III. 

“You understand the nature of the charges against you, sir?

“The Defendant: Yes, sir.

“[Prosecutor]: Is that a little summary of the facts that I 

just gave that basically happened that night?

“The Defendant: Yes, sir.

“[Defense Counsel]: We will stipulate, counsel, that the 

Court may read and consider the preliminary hearing transcript 

as a factual basis for the plea.

“[Prosecutor]: Will counsel also stipulate to a factual basis 

for the plea?

“[Defense Counsel]: Yes.

“[Prosecutor]: The People will also stipulate.” 

The trial court sentenced Fisher to 25 years to life in 

count 1, plus two years for the firearm enhancement. In count 2, 

the court imposed a sentence of 15 years to life, plus two years for 

the firearm enhancement, to run concurrently with count 1. In 

count 3, the court imposed a term of seven years for the 
4

attempted murder and two years for the firearm enhancement, 

also to run concurrently to the sentence in count 1. 

On February 1, 2021, Fisher executed a petition for 

resentencing pursuant to section 1172.6.2

On June 17, 2021, the trial court held a hearing on the 

matter. Appointed counsel stated that he had reviewed the 

documents relating to the case and stated that he would “submit 

at this point on the informal response filed by the People.”3 The 

court informed the parties that it intended to deny the petition 

because it appeared that Fisher was the actual shooter and not 

eligible for relief. The court stated that it would issue a written 

order. 

On June 21, 2022, the trial court summarily denied 

Fisher’s petition in a written memorandum of decision. The court 

stated that it had read and considered Fisher’s plea transcript, 

dated October 13, 1983; the sentencing transcript dated 

December 2, 1983; the probation report dated November 29, 

1983, and the arguments of counsel.4

2 We granted Fisher’s request to augment the record to 

include his section 1172.6 petition. The petition indicates that 

Fisher executed it on February 1, 2021; however, it does not have

a file stamp from the Los Angeles Superior Court. We permitted 

the People to seek reconsideration of our order if the People 

believed the original of the attached petition was not filed. We 

have had no such request from the People. 

3 The People’s response is not included in the record on 

appeal.

4 The trial court did not indicate that it had reviewed the 

preliminary hearing transcript that formed the factual basis for 
5

The court found: “Petitioner was the sole defendant and 

actual shooter in this matter, acting with specific intent required 

for a conviction pursuant to Penal Code sections 187(a) and 664-

187(a) and personally discharging a firearm causing death and 

great bodily injury. Therefore, petitioner/defendant is ineligible 

for resentencing pursuant to Penal Code [s]ection 1170.95.”5

Fisher appealed. 

Fisher’s guilty plea, and the transcript is not included in the 

record on appeal.

5 Although the caption of the trial court’s memorandum of 

decision, dated June 21, 2022, identifies Fisher as the defendant 

and petitioner, the body of the decision inaccurately reflects that 

the petitioner is “Dwight McDowell.” Additionally, the 

memorandum of decision reflects Fisher’s convictions for the first 

degree murder of Richard Harrison and the attempted murder of 

Deborah Thomas, but does not reflect Fisher’s conviction for the 

second degree murder of Jerrie Ann Dabney. The same errors

are present in the minute order dated June 21, 2022. On July 21, 

2023, we informed the parties of these inaccuracies by letter and 

invited them to file letter briefs on the issue if they deemed it 

necessary. Fisher declined to file briefing. The People filed a 

letter brief asserting that the inaccuracies we identified are 

clerical errors that must be corrected. We agree with the People 

and order that the minute order and order be modified 

accordingly. 
6

DISCUSSION

Legal Principles

“[U]ntil recently, when a person aided and abetted a 

nonhomicide crime that then resulted in a murder, the natural 

and probable consequences doctrine allowed him or her to be 

convicted of murder without personally possessing malice 

aforethought.” (People v. Gentile (2020) 10 Cal.5th 830, 845.) 

Under the natural and probable consequences doctrine, “an 

accomplice is guilty not only of the offense he or she directly 

aided or abetted (i.e., the target offense), but also of any other 

offense committed by the direct perpetrator that was the ‘natural 

and probable consequence’ of the crime the accomplice aided and 

abetted (i.e., the nontarget offense).” (Id. at p. 843.) In the case 

of a homicide, then, “[s]o long as the direct perpetrator possessed 

malice, and the killing was a natural and probable consequence 

of the crime the defendant aided and abetted,” the defendant was 

culpable for murder regardless of “whether the defendant 

intended to kill or acted with conscious disregard for human life.” 

(Id. at p. 845.) Additionally, liability for murder could be imposed 

under the felony murder rule even if the defendant did not act 

with express or implied malice if the killing occurred during the 

commission of certain offenses. The felony-murder rule provided 

that “ ‘[a]ll murder . . . which is committed in the perpetration of,

or attempt to perpetrate, [an enumerated crime] . . . is murder of 

the first degree.’ ” (People v. Wilkins (2013) 56 Cal.4th 333, 340.)

“Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 

No. 1437) amended section 188[, which sets forth the malice 

requirements for murder,] to provide that ‘[e]xcept as stated in 
7

subdivision (e) of [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.’ (Stats. 2018, ch. 1015, § 2.) The 

amendment effectively ‘eliminates natural and probable 

consequences liability for first and second degree murder.’ ”

(People v. Garrison (2021) 73 Cal.App.5th 735, 742.) With respect 

to felony murder, section 189, subdivision (e) now provides: “A 

participant in the perpetration or attempted perpetration of a[n] 

[enumerated] felony . . . 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 [s]ection 190.2.”

Senate Bill No. 1437 also enacted former section 1170.95

(now § 1172.6), which provides a procedure by which a person 

convicted of murder under a theory invalidated under Senate Bill 

No. 1437 may petition to vacate the conviction. (People v. Gentile, 

supra, 10 Cal.5th at p. 843; former § 1170.95, subd. (a).) Senate 

Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill No. 775) 

amended former section 1170.95 effective January 1, 2022 to 

expand its reach to defendants convicted of attempted murder 

and manslaughter. (former § 1170.95, subd. (a); Stats. 2021, 

ch. 551, § 2.) Effective June 30, 2022, section 1170.95 was 

renumbered section 1172.6, with no changes in text. (Stats. 2022, 

ch. 58, § 10.)
8

Upon receipt of a complying petition under section 1172.6, 

the trial court must appoint counsel, allow briefing, and then 

determine if the petitioner has made a prima facie showing that, 

inter alia, “[t]he petitioner could not presently be convicted of 

murder or attempted murder” under the amendments to the 

Penal Code enacted under Senate Bill No. 1437. (§ 1172.6, subd. 

(a)(3).) In making the prima facie determination, the trial court 

must “ ‘ “take[ ] [the] petitioner’s factual allegations as true and 

make[ ] a preliminary assessment regarding whether the 

petitioner would be entitled to relief if his or her factual 

allegations were proved.” ’ ” (People v. Lewis (2021) 11 Cal.5th 

952, 971.) “ ‘[A] court should not reject the petitioner’s factual 

allegations on credibility grounds without first conducting an 

evidentiary hearing.’ ” (Ibid.) The court may rely on the record 

of conviction in making the prima facie determination, however, 

and “ ‘if the record, including the court’s own documents, 

“contain[s] facts refuting the allegations made in the petition,” 

then “the court is justified in making a credibility determination 

adverse to the petitioner.” ’ ” (Ibid.)

Analysis

In the opening brief, Fisher contends that he satisfied the 

statutory criteria to make a prima facie showing of eligibility for 

resentencing. He argues that because he entered into a plea 

agreement no jury or court has made findings regarding his role 

in the crimes. Additionally, his plea contained no admissions 

regarding his mens rea. Fisher asserts that the trial court’s 

ruling was based on premature fact-finding and overly broad 
9

conclusions regarding what he admitted to as part of his plea. 

We reject the contention.

There is no merit to Fisher’s argument that the trial court 

engaged in premature fact-finding. The trial court reviewed and 

relied upon the plea colloquy, which is part of the record of 

conviction. The trial court may make a credibility determination 

adverse to Fisher on this basis. (See People v. Lewis, supra, 11 

Cal.5th at p. 971 [court may deny petition at prima facie stage 

based on record of conviction].)

At the plea colloquy, Fisher, who was the only person 

charged with the crimes of which he was convicted, admitted 

that, on March 31, 1983, he entered an apartment, shot and 

killed the victims in counts 1 and 2, and shot and injured the 

victim in count 3. We disagree with Fisher that the substance of 

this admission is unclear. The prosecutor stated that he was 

going to summarize the charges, told Fisher he was charged with 

shooting and killing two people and shooting and injuring a third 

person, and then asked if Fisher agreed with that summary. 

Fisher stated that he did. The exchange was not ambiguous.

We also reject Fisher’s assertion that he only admitted that 

he was guilty of murder and attempted murder, which did not 

require that he harbor malice at that time. Fisher asserts that 

he did not admit that he actually killed the victims in counts 1 

and 2 and attempted to kill the victim in count 3. Fisher avers 

that he could stipulate to a factual basis for the plea without 

making an admission. He argues that because it was not 

necessary for him to admit to being the actual killer/attempted 

murderer to admit guilt, he had no reason to contest the 

prosecutor’s summary of events because it would have no impact 

on his plea agreement. This explanation is simply not 
10

reasonable. Regardless of whether Fisher was required to admit 

to being the actual killer/attempted murderer, or could stipulate 

to particular facts without admitting them, the only reasonable 

view of the record here is that Fisher did admit that he was the 

actual killer/attempted murderer. Although there may be details 

that a defendant would not contest because they are not relevant 

to a plea agreement, that the defendant shot and killed two 

people and shot and injured a third person is not a detail that

people blithely admit simply because the admissions will have no 

immediate consequences. Given that Fisher was not required to 

admit to being an actual killer/attempted murderer, we see no 

reason that he would make the admission if he did not believe it 

to be true.

Fisher’s argument that he did not specifically admit to a 

particular mens rea has no teeth. Because he admitted he was 

the direct perpetrator of the crimes, Fisher could not have been 

convicted under the natural and probable consequences doctrine, 

so malice could not have been imputed to him under that theory. 

Although Fisher could have been convicted under a felony 

murder theory of murder, malice is still not a required element 

for actual killers under the exception in section 189, subdivision 

(e)(1).

The cases upon which Fisher relies are distinguishable. In 

People v. Rivera (2021) 62 Cal.App.5th 217, 233 (Rivera), the 

Court of Appeal held that the defendant could not be found prima 

facie ineligible under former section 1170.95 as a matter of law 

based on the allegation in the indictment that “a murder was 

committed “ ‘ “willfully, unlawfully[,] and with malice 

aforethought” ’ ” because this was “a well-recognized way of 

charging murder in this generic sense.” The appellate court 
11

explained that the language of the indictment did not limit the 

prosecution to seeking a conviction under any particular theory of 

murder, including the now-invalid theories of natural and 

probable consequences and felony murder. (Ibid.) In the instant 

case, Fisher’s ineligibility was not based on generic language in 

the indictment; it was based on his express admissions at the 

plea colloquy. Rivera is inapposite.

People v. Eynon (2021) 68 Cal.App.5th 967 (Eynon) 

presented a similar issue. There, the information generically 

alleged that the defendant and his codefendant “ ‘did willfully, 

unlawfully, and with deliberation, premeditation, and malice 

aforethought [murder the victim].’ ” (Id. at p. 971.) The Eynon

court emphasized that although the defendant admitted that he 

was guilty of premeditated and deliberate murder on an 

unspecified theory, he did not state that he acted with

premeditation and deliberation, or had the intent to kill, and 

made no factual admissions that would render him ineligible for 

relief. (Id. at p. 979.) Because Eynon made no specific admission 

at the plea colloquy, the appellate court held that he was prima 

facie eligible for relief under former section 1170.95.6 (Ibid.) 

Fisher, who was the sole defendant, did not merely plead guilty 

to murder and attempted murder: he expressly admitted to 

shooting and killing two people, and shooting and injuring a third 

person. 

In People v. Davenport (2021) 71 Cal.App.5th 476, 484, the 

defendant was charged with committing murder “ ‘with malice 

aforethought,’ ” and pleaded no contest to second degree murder 

6 People v. Flores (2022) 76 Cal.App.5th 974 presented the 

same issue and the court reached the same conclusion.
12

and personal use of a firearm under section 12022.5, 

subdivision (a). The Davenport court concluded that the charge 

was generic and did not limit the prosecution’s theory of liability. 

(Ibid.) Additionally, the court concluded that the defendant’s 

admission to the firearm allegation did not preclude the 

possibility that he was tried under a felony murder theory of 

murder. (Id. at p. 485.) The court held that the defendant was 

not prima facie ineligible for relief under former section 1170.95 

and reversed the trial court’s order. (Ibid.) In this case, we need 

not reach the question of whether Fisher’s admission to firearm 

enhancements would render him prima facie ineligible for relief 

in light of our holding that his express admissions do. Because 

he specifically admitted to shooting and killing two people and 

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

matter of law.7

7 Fisher also argues that the trial court’s denial of the 

petition without issuing an order to show cause or holding an 

evidentiary hearing violated his due process rights. Given our 

conclusion that Fisher is ineligible for relief as a matter of law, 

the argument necessarily fails.
13

DISPOSITION

We order that the trial court’s memorandum of decision 

and minute order, dated June 21, 2022, be modified to reflect that 

Fisher, and not Dwight McDowell, is the petitioner in this 

matter, and to include Fisher’s conviction for the second degree 

murder of Jerrie Ann Dabney. As modified, we affirm the trial 

court’s order denying Fisher’s petition for resentencing under

Penal Code section 1172.6. 

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.
1

Filed 9/25/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES HARRIS FISHER,

Defendant and Appellant.

 B323408

 (Los Angeles County

 Super. Ct. No. A389396)

 ORDER

THE COURT:

The opinion in the above-entitled matter filed on August 28, 2023, was 

not certified for publication in the Official Reports.

Respondent representing the Office of the Attorney General, Rob Bonta 

and Susan Sullivan Pithey, Senior Assistant Attorney General, have 

requested that our opinion in the above-entitled matter, filed August 28, 

2023, be certified for publication. It appears that our opinion meets the 

standards set forth in California Rules of Court, rule 8.1105(c).

The opinion is ordered published in the Official Reports with no change 

in judgment.

 ______________________________________________________________

 RUBIN, P. J. MOOR, J. KIM, J.