1

Filed 3/19/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MIGUEL ANGEL RIVERA, JR.,

Defendant and Appellant.

 A158284

 (San Mateo County

 Super. Ct. No. SC080432B)

A grand jury indicted defendant Miguel Rivera and his co-defendant, 

Jerry Coneal, for murder with accompanying special-circumstance allegations

of lying in wait and committing the crime for the benefit of a street gang. 

Rivera pleaded no contest to second degree murder and admitted a prior 

strike in exchange for the dismissal of the special-circumstance allegations

and certain other enhancements. In 2017, he was sentenced to a total term of 

35 years to life in prison. 

The Legislature subsequently amended Penal Code sections 188 and 

189 to limit liability for murder under the doctrines of felony murder and 

natural and probable consequences, and it established a procedure, under 

newly enacted Penal Code section 1170.95, for eligible defendants to petition 

to have their murder convictions vacated and be resentenced.

1

 Rivera filed a 

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

(Stats. 2018, ch. 1015). All further statutory references are to the Penal 

Code.
2

petition for relief under section 1170.95, and the trial court appointed counsel 

for him. After receiving briefing from the parties, the court denied the 

petition on the basis that Rivera failed to make a prima facie showing of

eligibility for relief.2 Specifically, the court determined that he “entered a 

plea to second degree murder with malice” and nothing in the record of 

conviction supported the conclusion that the murder was “anything other 

than an intentional killing in which [he] harbored such malice.” 

On appeal, Rivera argues that the trial court erred in concluding that 

his plea precluded his eligibility for resentencing under section 1170.95 as a 

matter of law. We agree. We hold that a defendant who entered a plea to 

murder “with malice aforethought” is not categorically incapable of making a 

prima facie showing of eligibility for relief under section 1170.95, 

subdivision (c) (section 1170.95(c)), because such a plea is not necessarily an 

admission that the crime was committed with actual malice. We also hold 

that a defendant who stipulated to a grand jury transcript as the factual 

basis of the plea may make a prima facie showing of eligibility for relief by

identifying a scenario under which he or she was guilty of murder only under 

a now-invalid theory, even if the record of conviction does not demonstrate 

that the indictment rested on that scenario. We disagree with People v. 

Nguyen (2020) 53 Cal.App.5th 1154 (Nguyen) to the extent it holds otherwise. 

Applying these principles here, we conclude that the trial court erred in 

ruling that Rivera failed to make a prima facie showing of eligibility for relief 

2 The trial court also denied the petition on the independent basis that 

Senate Bill No. 1437 is unconstitutional. The Attorney General concedes, as 

numerous appellate decisions have since held, that the legislation is 

constitutional. (E.g., People v. Lombardo (2020) 54 Cal.App.5th 553, 555; 

People v. Nash (2020) 52 Cal.App.5th 1041, 1052–1053; People v. Johns

(2020) 50 Cal.App.5th 46, 54.) Accordingly, we do not address this issue 

further.
3

under section 1170.95(c). Accordingly, we reverse and remand for the trial 

court to issue an order to show cause and conduct further proceedings to 

determine whether resentencing is warranted. 

I.

FACTUAL AND PROCEDURAL

BACKGROUND

In October 2012, Christopher Baker was shot to death in East Palo 

Alto. After hearing evidence tending to suggest that Rivera was present 

when Coneal, a fellow gang member, shot Baker, and drove Coneal to and 

from the scene, a grand jury indicted Rivera and Coneal for Baker’s murder.3

The operative indictment’s only count alleged that Coneal and Rivera “did 

willfully, unlawfully, and with malice aforethought murder [Baker] . . . in 

violation of . . . section 187(a), a felony,” with accompanying gang and lyingin-wait special circumstances as to both defendants. The indictment also 

alleged other gang-related enhancements as to both defendants, one that the 

offense was committed to benefit a gang and the other that a principal 

personally and intentionally discharged a firearm causing death during such 

an offense. Only Coneal, however, was alleged to have personally and 

intentionally discharged a firearm causing death.4 Finally, the indictment 

3 As we discuss further below, the trial court declined to take judicial 

notice of the reporter’s transcript of the grand jury proceedings, but the 

Attorney General filed in this court a request for judicial notice of the “more 

than 2,000 pages” of that document pertaining to Rivera. We decline the 

request because, for reasons we shall explain, the transcript’s content is 

unnecessary to our disposition. (See Mireskandari v. Gallagher (2020) 

59 Cal.App.5th 346, 359, fn. 11.) The basic facts we have recited, however, 

which are primarily drawn from documents in the record that in turn cite to 

the grand jury transcript, are not contested by Rivera.

4 The special circumstance allegations were made under section 190.2, 

subdivision (a)(15) (lying in wait) & (22) (gang). The other gang allegations 

were made under sections 186.22, subdivision (b)(5) (gang offense), and 
4

alleged various enhancements against Rivera based on a prior conviction of 

attempted burglary.

5

In July 2017, as part of a plea agreement, Rivera entered a plea of no 

contest to second degree murder, admitted the offense was committed to 

benefit a gang, and admitted the strike. The remaining allegations were 

dismissed. Later that month, the court sentenced Rivera to 35 years to life in 

prison, composed of a term of 15 years to life for murder, doubled because of 

the strike, and a consecutive term of five years for the prior conviction of a 

serious felony.6

Before the trial court took Rivera’s plea to murder, the prosecutor 

confirmed that “[t]he People would be willing to stipulate that it’s murder in 

the second degree.” The court then asked, “Mr. Rivera, what is your plea to 

Count 1, that on or about October 5, 2012, you did willfully, unlawfully[,] and 

with malice aforethought murder [Baker] . . . in violation of Penal Code 

section 187(a), a felony?” Rivera responded, “No contest.” 

After Rivera admitted the remaining allegations attached to the 

murder count, the trial court asked his trial counsel whether counsel 

12022.53, subdivision (e) (firearm use during gang offense). And the firearm 

allegation against Coneal was made under section 12022.53, subdivision (d). 

5 The indictment alleged that in 2011 Rivera was convicted of 

attempted first degree burglary under sections 460, subdivision (a), and 664,

which constituted a serious felony under sections 667, subdivision (a), and 

1170.12, subdivision (c)(1). The indictment also alleged that he served a prior 

prison term for the offense under section 667.5, subdivision (b), and that he 

was on parole when he committed the murder. 

6 The murder conviction was under section 187, subdivision (a), with 

the term doubled under section 1170.12, subdivision (c)(1), and the 

enhancement for the prior conviction of a serious felony was under 

section 667, subdivision (a). The sentence in this case is consecutive to a 

term of 14 years and four months imposed on Rivera in an earlier Santa 

Clara County case. 
5

“stipulate[d] to a factual basis” for the plea. Counsel responded affirmatively, 

indicating that he did so based on the transcript of the grand jury 

proceedings.7 The court “accept[ed] the stipulated factual basis” and found 

Rivera guilty of second degree murder based upon the plea. 

In April 2019, shortly after section 1170.95 became effective, Rivera 

filed a petition claiming he was eligible for relief because he entered a plea to 

murder “in lieu of going to trial because [he] believed [he] 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.” The trial court 

appointed counsel (the same attorney who represented Rivera when he 

entered his plea) and ordered the People to file a response to the petition and 

Rivera to file a reply to the People’s response. 

The People argued that Rivera failed to make a prima facie showing of 

eligibility for relief because the record demonstrated that the prosecution 

proceeded on “a single basis of liability reliant on a theory that [Rivera] 

jointly possessed malice aforethought with . . . Coneal when they murdered 

. . . Baker,” and Rivera identified nothing to indicate otherwise. The People 

also filed a request for judicial notice of various documents from the 

underlying criminal case, including the reporter’s transcript from the grand 

jury proceedings.

In reply, Rivera argued that he could not now be convicted of murder 

“because of the elimination of the natural and probable consequences 

doctrine.” Pointing out that there was no dispute Coneal was the actual 

shooter, Rivera highlighted the lack of evidence that he shared or knew of 

7 No summary of the transcript’s content was put on the record before 

Rivera entered his plea. Specifically, the prosecutor did not summarize any 

relevant facts at the plea hearing, and the plea form did not contain one.
6

Coneal’s intent, that he knew Coneal had a gun, or that he assisted Coneal in 

any way except by driving the car. Rivera drew a parallel to the facts in In re 

R.G. (2019) 35 Cal.App.5th 141, which involved a juvenile convicted of second 

degree murder under the natural and probable consequences doctrine based 

on his intent to participate in a gang assault that ended in murder. (Id. at 

p. 146.)

After receiving the parties’ briefing, the trial court (the same judge who 

took Rivera’s plea) held a hearing on the petition in July 2019. The court

granted the People’s request for judicial notice of documents previously filed 

in the case, with the exception of the grand jury transcript. In declining the 

request as to the transcript, the court stated, “I can’t find any basis on which 

the court should take judicial notice of that uncontested testimony.” The 

court then denied the petition for failure to make a prima facie showing of 

eligibility for relief on the basis that Rivera was charged with and “entered a 

plea to second degree murder with malice.” In so ruling, the court 

emphasized that despite its familiarity “with the facts underlying what led to 

the murder . . . , [it was] not taking into consideration [its] knowledge of any 

of that in evaluating whether . . . Rivera . . . made a prima facie case for 

relief.” 

II.

DISCUSSION

Rivera argues that the trial court erred by denying his petition on the 

basis that his conviction precluded relief under section 1170.95 as a matter of 

law, because his plea to second degree murder did not “involve[] an admission 

of express malice and intent to kill.” He contends that he is entitled to an 

evidentiary hearing on whether he could still be convicted of second degree 

murder. We agree.
7

A. Senate Bill No. 1437 and Section 1170.95 

“ ‘Effective January 1, 2019, Senate Bill [No.] 1437 amended murder 

liability under the felony-murder and natural and probable consequences 

theories. The bill redefined malice under section 188 to require that the 

principal acted with malice aforethought. Now, “[m]alice shall not be 

imputed to a person based solely on his or her participation in a crime.” 

(§ 188, subd. (a)(3).)’ [Citation.] The bill also amended section 189 to provide 

that a defendant who was not the actual killer and did not have an intent to 

kill is not liable for felony murder unless he or she ‘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,’ or the victim was a peace 

officer performing his or her duties. (§ 189, subds. (e) & (f).)” (People v. 

Daniel (2020) 57 Cal.App.5th 666, 672, review granted Feb. 24, 2021, 

S266336 (Daniel).)

“Senate Bill No. 1437 also enacted section 1170.95, which authorizes 

‘[a] person convicted of felony murder or murder under a natural and 

probable consequences theory [to] 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.’ (§ 1170.95, subd. (a).) . . . ‘[T]he 

defendant initiates the process by filing a petition in the sentencing court 

that must include three pieces of information. (§ 1170.95, subd. (b).) First, 

the petition must include “[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).) Those requirements are (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) “[t]he petitioner 
8

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”; and (3) “[t]he petitioner 

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, subd. (a).) 

Second, the petition must include “[t]he superior court case number and year 

of the petitioner’s conviction.” (§ 1170.95, subd. (b)(1)(B).) And finally, the 

petition must state “[w]hether the petitioner requests the appointment of 

counsel.” (§ 1170.95, subd. (b)(1)(C).)’ ” (Daniel, supra, 57 Cal.App.5th at 

p. 672.)

“ ‘Section 1170.95(c) addresses the procedure by which a trial court 

determines whether the petitioner is entitled to an evidentiary hearing. The 

subdivision provides in full: “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. 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[’s] 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.” ’ ” (Daniel, 

supra, 57 Cal.App.5th at p. 673.)

After issuing an order to show cause, the trial 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,” unless 

the parties “waive a resentencing hearing and stipulate that the petitioner is 

eligible to have his or her murder conviction vacated and for resentencing.” 
9

(§ 1170.95, subd. (d)(1)–(2).) “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. . . . 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).) “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,” or, if “murder was charged 

generically, and the target offense was not charged,” on the conviction 

“redesignated as the target offense or underlying felony.” (§ 1170.95, 

subds. (d)(3), (e).)

B. The Standards Governing the Prima Facie Stage of Review

“Since [Senate Bill No.] 1437 was adopted and its mechanism for 

retroactive applications has come into play through the filing of 

section 1170.95 petitions, many questions have arisen about that process and 

percolated up through appeals from resentencing decisions.” (People v. 

Duchine (2021) 60 Cal.App.5th 798, 811 (Duchine).) This appeal implicates 

two areas of disagreement. First, the Supreme Court has granted review to 

decide whether a trial court may consider the record of conviction in 

determining whether a petitioner has made a prima facie showing of 

eligibility for relief under section 1170.95(c). (People v. Lewis (2020) 

43 Cal.App.5th 1128, review granted Mar. 18, 2020, S260598.) Although 

Rivera does not dispute that we may consult the indictment and documents 

related to the plea, including the plea hearing transcript, the parties do 

disagree about whether we may properly rely on the grand jury transcript. 
10

Second, Courts of Appeal disagree about the nature of the petitioner’s 

burden to make a prima facie showing of eligibility for relief under 

section 1170.95(c). Recently, in Duchine, our colleagues in Division Two of 

this court summarized two competing interpretations. “In People v. Drayton

(2020) 47 Cal.App.5th 965 (Drayton), . . . the Sixth District [Court of Appeal] 

held that at the prima facie stage of a resentencing petition the trial court 

should not decide unresolved factual issues that involve credibility 

determinations or weighing of evidence. . . . According to Drayton, the trial 

court’s authority to make factual determinations at the prima facie stage ‘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).’ ” 

(Duchine, supra, 60 Cal.App.5th at pp. 811–812, fn. omitted.) On the other 

hand, in People v. Garcia (2020) 57 Cal.App.5th 100, review granted Feb. 10, 

2021, S265692 (Garcia), Division Six of the Second District Court of Appeal 

“interpreted section 1170.95’s eligibility requirement in subdivision (a)(3) 

that the petitioner make a prima facie showing he or she ‘could not be 

convicted of first or second degree murder because of changes’ wrought by 

[Senate Bill No.] 1437 as importing a ‘substantial evidence’ standard and as 

requiring a court to deny a petition if it concludes substantial evidence exists 

in the record on which a jury could have based a murder conviction on a valid 

theory had it been instructed on that theory.”8 (Duchine, at p. 812.) In short, 

8 In reaching its holding, Garcia relied on a case from another division 

of the Second District that involved “the nature of the prosecution’s burden at 

the evidentiary hearing phase.” (Duchine, supra, 60 Cal.App.5th at p. 812.) 

That other Second Division case, in which the Supreme Court has since 

granted review, presents the issue whether the People’s burden of 
11

while under Drayton a petitioner who “asserts he [or she] lacked the requisite 

intent or did not act in a manner that would make him [or her] liable under 

still-valid murder theories” has made a sufficient prima facie showing “unless 

the record of conviction refutes those assertions as a matter of law,” under 

Garcia such assertions are insufficient if there is substantial evidence in the 

record to support the petitioner’s guilt of murder under a still-valid theory. 

(Duchine, at pp. 812–813.)

Duchine concluded, and the parties appear to agree, that Drayton

states the appropriate standard.

9

 (Duchine, supra, 60 Cal.App.5th at 

pp. 813–814.) We agree with Duchine’s reasoning and adopt its holdings that 

(1) “the prima facie showing the [petitioner] must make is that he [or she] did 

not, in fact, act [as required] or harbor the mental state required . . . for a 

murder conviction under current law” and (2) “the time for weighing and 

balancing and making findings on the ultimate issues arises at the 

evidentiary hearing stage rather than at the prima facie stage, at least where 

the record is not dispositive on the factual issues. Thus, absent a record of 

conviction that conclusively establishes that the petitioner engaged in the 

requisite acts and had the requisite intent, the trial court should not question 

[the petitioner’s] evidence.” (Id. at p. 815, italics added.)

The interplay between the two issues we have identified—the materials 

a trial court may consult and a petitioner’s required showing at the prima 

establishing a petitioner’s ineligibility for relief at a hearing under 

section 1170.95, subdivision (d)(3), is satisfied by presenting substantial 

evidence of a petitioner’s guilt of murder under a still-valid theory or whether 

it requires proof of every element of the crime beyond a reasonable doubt. 

(People v. Duke (2020) 55 Cal.App.5th 113, review granted Jan. 13, 2021, 

S265309.) 

9 The Attorney General’s brief cites Drayton but not Garcia, which was 

decided almost two months before the brief was filed.
12

facie stage—is key to the resolution of this case. As we now discuss, although 

the trial court mistakenly ruled that Rivera’s plea to murder as charged in 

the indictment barred relief as a matter of law, it correctly declined to rely on 

the grand jury transcript in deciding whether Rivera made the required

prima facie showing. This is because the transcript does not establish any 

“ ‘readily ascertainable facts’ ” conclusively demonstrating that Rivera is 

ineligible for relief under section 1170.95. (Duchine, supra, 60 Cal.App.5th at 

p. 815, quoting Drayton, supra, 47 Cal.App.5th at p. 980.) 

C. Rivera Made a Prima Facie Showing of Eligibility for Relief 

Under Section 1170.95(c).

We begin by reviewing the general law of murder and the various 

theories under which it may be proven. “Murder is the unlawful killing of a 

human being, or a fetus, with malice aforethought.” (§ 187, subd. (a).) “For 

purposes of Section 187, malice may be express or implied.” (§ 188, subd. (a).) 

In other words, the statutory phrase “malice aforethought” refers to both 

express and implied malice. “Malice is express when there is manifested a 

deliberate intention to unlawfully take away the life of a fellow creature.” 

(§ 188, subd. (a)(1).) “Malice is implied when no considerable provocation 

appears, or when the circumstances attending the killing show an abandoned 

and malignant heart.” (§ 188, subd. (a)(2).) “Express malice is an intent to 

kill,” but implied malice does not require such intent. (People v. Gonzalez

(2012) 54 Cal.4th 643, 653 (Gonzalez).) Rather, “[m]alice is implied when a 

person willfully does an act, the natural and probable consequences of which 

are dangerous to human life, and the person knowingly acts with conscious 

disregard for the danger to life that the act poses.” (Ibid.)

“Second degree murder is the unlawful killing of a human being with 

malice aforethought but without the additional elements, such as willfulness, 

premeditation, and deliberation, that would support a conviction of first 
13

degree murder.” (People v. Knoller (2007) 41 Cal.4th 139, 151.) All murders 

committed with implied malice are of the second degree. (Gonzalez, supra, 

54 Cal.4th at p. 653.) In addition, if a person commits murder with the intent 

to kill, but “the intent to kill is not formed after premeditation and 

deliberation, the murder is of the second degree.” (Ibid.)

Before Senate Bill No. 1437, “the natural and probable consequences 

doctrine was an exception to the actual malice requirement”—i.e., the 

requirement of either express or implied malice.10 (People v. Clements (2021) 

60 Cal.App.5th 597, 610 (Clements); People v. Gentile (2020) 10 Cal.5th 830, 

847 (Gentile).) The name of the doctrine is confusing, since implied malice 

also incorporates the idea of “natural and probable consequences,” but the 

two concepts are distinct. Whereas implied malice is based on “the ‘natural 

and probable consequences’ of a defendant’s own act,” the natural and 

probable consequences doctrine was “a theory of vicarious liability under 

which ‘[a]n aider and abettor [was] guilty not only of the intended, or target, 

crime but also of any other crime a principal in the target crime actually 

commit[ted] (the nontarget crime)’ ”—including murder—“ ‘that [was] a 

natural and probable consequence of the target crime.’ ” (Daniel, supra, 

57 Cal.App.5th at p. 677, fn. 4.) “Because a nontarget murder ‘ “[was]

unintended, the mens rea of the aider and abettor with respect to that offense 

[was] irrelevant and culpability [was] imposed simply because a reasonable 

person could have foreseen the commission of the [murder].” ’ ” (Clements, at 

p. 610.) At the time Rivera was convicted, an aider and abettor could be 

10 Likewise, the felony-murder rule requires neither express nor 

implied malice. Instead, it “ ‘ “imputes the requisite malice for a murder 

conviction to those who commit a homicide during the perpetration of a felony 

inherently dangerous to human life.” ’ ” (People v. Baker (2021) 10 Cal.5th 

1044, 1105.)
14

found guilty of second degree murder based on the natural and probable 

consequences doctrine. (See People v. Chiu (2014) 59 Cal.4th 155, 166; 

Clements, at p. 610.) 

Under section 188 as amended by Senate Bill No. 1437, “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.” (§ 188, subd. (a)(3).) Although the legislation thus “abolished the 

natural and probable consequences doctrine” as a theory of vicarious liability,

“it maintained the viability of murder convictions based on implied malice, 

and the definition of implied malice remains unchanged.” (Clements, supra,

60 Cal.App.5th at p. 618.) In other words, a person may still be convicted of 

second degree murder, either as a principal or an aider and abettor, “if the 

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

with conscious disregard for life.” (Gentile, supra, 10 Cal.5th at p. 850; 

Clements, at p. 618–619.)

It is undisputed that a conviction of second degree murder does not, in 

and of itself, bar a petition under section 1170.95. (See Gentile, supra, 

10 Cal.5th at p. 847 [section 1170.95 “procedure expressly contemplates that 

defendants convicted of second degree murder can avail themselves of Senate 

Bill [No.] 1437’s ameliorative provisions”].) To the contrary, the Legislature’s 

unambiguous intent in enacting the statute was to provide an avenue of relief 

for defendants convicted of murder who did not act with either express or 

implied malice, but to whom malice was imputed under either the felonymurder rule or the natural and probable consequences doctrine. (See 

generally Gentile, at pp. 845–847.) Here, the trial court concluded that the 

conviction nevertheless precluded relief as a matter of law because Rivera

was charged with and “entered a plea to second degree murder with 
15

malice.”

11 (Italics added.) We therefore turn to address whether the 

particulars of Rivera’s plea render him ineligible for relief.

One requirement for relief under section 1170.95 is 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, subd. (a)(1).) The 

Attorney General argues that this requirement is not met because the 

indictment alleged that Rivera “ ‘did willfully, unlawfully[,] and with malice 

aforethought murder . . . Baker’ ” and, as a special circumstance, that Rivera 

“ ‘intentionally killed the victim by means of lying in wait.’ ” Noting that 

Rivera “was not charged with felony murder” and the indictment lacks any 

“allegations . . . of an underlying felony or a target offense that could support 

felony murder or a natural and probable consequences murder,” the Attorney 

General contends that Rivera’s “mere theorizing, without any basis in the 

record,” that the prosecution could have proceeded under one of these 

theories “is insufficient to make a prima facie showing” of eligibility for relief. 

We disagree.

The generic manner in which murder was charged here did not limit

the People to prosecuting Rivera on any particular theories. As Rivera points 

out, it is well-settled that “only a single statutory offense of murder exists.” 

(People v. Nakahara (2003) 30 Cal.4th 705, 712.) Thus, “it has long been the 

law in this state that an accusatory pleading charging murder need not 

specify degree or the manner in which the murder was committed” (People v. 

11 In ruling, the trial court stated that Rivera was charged with 

“murder with malice aforethought, which is an intent to kill.” As discussed 

above, however, the term “malice aforethought” includes implied malice, 

which may exist absent an intent to kill. (Gonzalez, supra, 54 Cal.4th at 

p. 653.)
16

Thomas (1987) 43 Cal.3d 818, 829, fn. 5), nor need it “specify the theory of 

murder on which the prosecution relies at trial.” (People v. Contreras (2013) 

58 Cal.4th 123, 147.) Specifically, neither felony murder nor murder under 

the natural and probable consequences doctrine need be separately pleaded. 

(Nakahara, at p. 712 [felony murder]; see Gentile, supra, 10 Cal.5th at p. 843 

[aiding and abetting not a separate offense]; People v. Garrison (1989) 

47 Cal.3d 746, 776, fn. 12 [accusatory pleading that charges the defendant “as 

a principal is sufficient to support a conviction as an aider or abettor”].) The 

allegation that a murder was committed “willfully, unlawfully, and with 

malice aforethought” is a well-recognized way of charging murder in this 

generic sense. (People v. Sattiewhite (2014) 59 Cal.4th 446, 473 [such 

language is silent as to degree of murder]; People v. Kipp (2001) 26 Cal.4th 

1100, 1131 [such language provides adequate notice of felony-murder theory];

see People v. Witt (1915) 170 Cal. 104, 107–108.) In short, despite the fact 

that the indictment charged Rivera with murder committed with malice 

aforethought, it allowed the prosecution to proceed on any theory of murder.

The fact that a special circumstance requiring an intent to kill was also 

alleged does not change this conclusion. Had Rivera entered a plea to murder

as charged without the degree of the offense being specified, we might agree 

that the presence of the special circumstance meant the plea was to first 

degree murder. (See Sanchez v. Superior Court (2002) 102 Cal.App.4th 1266, 

1267–1268 [defendant charged with special circumstance could not enter plea 

to unspecified degree of murder to allow trial court to determine degree].) 

But rules governing the fixing of a crime’s degree upon entry of a plea do not 

affect the issue whether the charging document permits the People to proceed 

upon a particular theory. Particularly where, as here, a defendant ultimately 

enters a plea to second degree murder, the allegation of a special
17

circumstance requiring an intent to kill does not preclude prosecution based 

on the natural and probable consequences doctrine.

The Attorney General also argues that because Rivera admitted to 

committing murder with malice aforethought, he was not “convicted of felony 

murder or murder under a natural and probable consequences theory” under 

section 1170.95, subdivision (a). Assuming, without deciding, that the quoted 

statutory language establishes a requirement for relief apart from the three

requirements enumerated in the same subdivision, we cannot agree that 

Rivera’s admission to the count as charged bars relief as a matter of law. 

“A guilty plea [or plea of nolo contendere] admits every element of the 

charged offense.” (In re Chavez (2003) 30 Cal.4th 643, 649; see § 1016, 

subd. 3; see also People v. Cisneros-Ramirez (2018) 29 Cal.App.5th 393, 405 

[plea is concession that prosecution can prove guilt beyond a reasonable 

doubt].) To be sure, “malice aforethought” is statutorily defined as an 

element of first and second degree murder. (§§ 187, subd. (a), 189, subd. (b).) 

But as we have discussed, before Senate Bill No. 1437 malice could be 

imputed to a defendant under the felony-murder rule or the natural and 

probable consequences doctrine, meaning that the person did not need to 

harbor express or implied malice to be convicted of second degree murder. 

And given that the allegation that a murder was committed “willfully, 

unlawfully, and with malice aforethought” is a generic charge permitting the 

prosecution to proceed on any theory of murder, we cannot conclude that by 

admitting to the murder as charged Rivera admitted that he acted with 

actual malice, not just that the element of malice was satisfied. 

We emphasize that Rivera made no admissions related to the murder 

other than pleading no contest to the count as charged. In some cases, the 

record may reveal that a defendant admitted more than the elements of the 
18

offense charged, and such additional admissions may preclude relief under 

section 1170.95. (See, e.g., People v. Verdugo (2020) 44 Cal.App.5th 320, 330, 

review granted Mar. 18, 2020, S260493 [suggesting that relief would be 

precluded as a matter of law if petitioner “admitted being the actual killer as 

part of a guilty plea”]; People v. Palacios (1997) 56 Cal.App.4th 252, 257 [no 

contest plea admits all elements and “ ‘all allegations and factors comprising 

the charge contained in the pleading’ ”].) 

Here, however, there is no basis on which to infer that Rivera admitted 

to acting with actual malice. His stipulation to the grand jury transcript as 

the factual basis for his plea does not establish such an admission. Under 

section 1192.5, a trial court taking a plea must make “an inquiry . . . of the 

defendant to satisfy itself . . . that there is a factual basis for the plea.” “The 

factual basis required by section 1192.5 does not require more than 

establishing a prima facie factual basis for the charges. [Citation.] It is not 

necessary for the trial court to interrogate the defendant about possible 

defenses to the charged crime [citation], nor does the trial court have to be 

convinced of [the] defendant’s guilt.” (People v. Holmes (2004) 32 Cal.4th 432, 

441, fn. omitted.) In addition, “[a] defendant is not required to personally 

admit the truth of the factual basis of the plea, which may be established by 

defense counsel’s stipulation to a particular document.” (People v. French

(2008) 43 Cal.4th 36, 50–51.) Thus, absent an indication that a defendant 

admitted the truth of particular facts, the stipulation to a factual basis for 

the plea does not “constitute[] a binding admission for all purposes.” (Id. at 

pp. 51–52; see, e.g., People v. Saez (2015) 237 Cal.App.4th 1177, 1206–1207 

[stipulation to factual basis did not constitute admission of additional facts 

necessary to render prior conviction a strike].) For our purposes, this means 

that Rivera did not admit to the truth of any of the evidence presented to the 
19

grand jury, and that evidence therefore cannot be used to demonstrate that 

he admitted to acting with actual malice. Thus, the trial court properly 

declined to rely on this evidence in making its ruling.

Nor does the record otherwise definitively establish that Rivera was not 

“convicted of felony murder or murder under a natural and probable 

consequences theory.” (§ 1170.95, subd. (a).) The Attorney General contends 

that the grand jury transcript reveals that the case against Rivera “was 

never predicated on felony murder or a natural and probable consequences 

theory,” because there were no instructions or argument to the grand jury 

based on either theory. Relying on Nguyen, the Attorney General argues that 

the absence of any mention in the record of an underlying felony or target 

offense that could support one of the no-longer-valid theories of murder 

demonstrates “as a matter of law” that Rivera “was convicted of malice 

murder.” 

In Nguyen, Division One of the Second District Court of Appeal held 

that a petitioner failed to make a prima facie showing of eligibility for relief 

under section 1170.95 because “the transcripts from the preliminary and plea 

hearings” established he “was convicted of second degree murder as a direct 

aider and abettor.” (Nguyen, supra, 53 Cal.App.5th at p. 1166.) At the 

preliminary hearing, the prosecutor presented evidence and argued that the 

petitioner encouraged and/or paid his codefendant, the actual killer, to 

commit the murder. (Id. at pp. 1158–1161.) In opposing the petition, the 

People argued that “ ‘[s]ufficient evidence presented at the preliminary 

hearing demonstrated that [the petitioner] was an aider and abettor to the 

murder,’ ” and “ ‘[a]t no point did the People argue that the natural and 

probable consequences [doctrine] applied to this case.’ ” (Id. at p. 1161.) The 

petitioner, who was represented by counsel, responded that the preliminary
20

hearing evidence failed to establish express or implied malice and “ ‘more 

readily support[ed] a second degree felony murder or natural and probable 

consequences theory,’ ” although he also acknowledged that “ ‘the record 

[was] devoid of any description of the contemplated act’ ” that might support 

either theory. (Id. at p. 1162.) The trial court denied the petition on the 

basis that the petitioner was “not entitled to relief under section 1170.95 as a 

matter of law because the preliminary hearing transcript demonstrate[d] [he] 

aided and abetted the charged offenses, and the prosecution did not argue a 

natural and probable consequences theory.” (Id. at p. 1163.)

The Court of Appeal affirmed, concluding that the petitioner was “not 

entitled to relief as a matter of law” because “[t]he transcripts from the 

preliminary and plea hearings demonstrate[d] [he] was convicted of second 

degree murder as a direct aider and abettor,” as that “was the only theory put 

forth by the prosecutor” at both hearings. (Nguyen, supra, 53 Cal.App.5th at 

p. 1166–1167.) Noting that the petitioner unquestionably could not have

made a prima facie showing of entitlement to relief under section 1170.95

had he gone to trial and been convicted by a jury that did not receive

instructions on felony murder or the natural and probable consequences 

doctrine, Nguyen determined that the petitioner’s “murder conviction after a 

guilty plea should not be accorded less weight and finality than a murder 

conviction after a jury trial.” (Nguyen, at p. 1167.) Thus, “counsel’s 

conjecture and speculation about other theories that could have been pursued 

at trial” was insufficient to overcome the conclusion that the conviction was 

based on a still-valid theory of murder. (Id. at p. 1167–1168.)

Nguyen involves similar facts to ours, but we decline to follow its 

holding. Although we agree that a murder conviction after a plea has just as 

much “weight and finality” as one after a trial (Nguyen, supra, 
21

53 Cal.App.5th at p. 1167), this does not mean that the theory underlying 

each type of conviction can be ascertained with the same degree of certainty. 

The fact that a petitioner was not “convicted of felony murder or murder 

under a natural and probable consequences theory” at trial may be 

conclusively determined if, for example, the jury did not receive instructions 

on either theory. (See People v. Soto (2020) 51 Cal.App.5th 1043, 1055, 

review granted Sept. 23, 2020, S263939 [jury instructions demonstrated 

petitioner convicted on still-valid theory of murder]; People v. Edwards (2020) 

48 Cal.App.5th 666, 674, review granted July 8, 2020, S262481 [same]; see 

also People v. Daniel, supra, 57 Cal.App.5th at p. 677 [error in not appointing

counsel under section 1170.95 harmless where jury not instructed on felony 

murder or the natural and probable consequences doctrine].) Under such 

circumstances, the petitioner was necessarily convicted of murder under a 

still-valid theory, and thus “ineligible for resentencing” as a matter of law. 

(§ 1170.95, subd. (d)(3).) 

In contrast, when a petitioner has entered a plea to murder after being 

charged by information or indicted, the record of conviction will generally

lack any comparable assurance of the basis for the conviction. Both “a 

magistrate deciding whether to bind a defendant over to the superior court on 

a criminal complaint” and a grand jury “determining whether to return an 

indictment” need only find “probable cause” to believe the defendant 

committed the charged crime. (Cummiskey v. Superior Court (1992) 

3 Cal.4th 1018, 1027–1029.) “ ‘ “Of course, the probable cause test is not 

identical with the test which controls a [trial] jury . . . . The jury must be 

convinced to a moral certainty and beyond a reasonable doubt of the 

existence of the crime charged in the information and of every essential 

element of that crime.” ’ ” (Id. at p. 1027.) But a magistrate or grand jury 
22

“ ‘ “must be convinced only of such a state of facts as would lead a [person] of 

ordinary caution or prudence to believe, and conscientiously entertain a 

strong suspicion of the guilt of the accused. [Citations.] In other words, 

‘Evidence that will justify a prosecution need not be sufficient to support a 

conviction.’ ” ’ ” (Id. at pp. 1027, 1029.)

And while a grand jury receives instructions, those instructions do not 

fix the theories on which a case may be prosecuted or establish the basis for a 

post-indictment plea. A prosecutor has “no duty to instruct the grand jury 

sua sponte on lesser included offenses” because “it ‘is not the province of the 

[g]rand [j]ury to determine the degree of murder.’ ” (Cummiskey v. Superior 

Court, supra, 3 Cal.4th at p. 1034.) Instead, “the primary function of the 

grand jury is to investigate the crime charged and to determine whether 

probable cause exists to return an indictment for that offense. The question 

whether the evidence would support, ‘beyond a reasonable doubt,’ a lesser 

included crime only, or whether a particular defense should mitigate the 

crime, is more appropriately left to pretrial motions addressed to the trial 

court, or to determination by a trial jury.” (Id. at p. 1036.) Thus, a grand 

jury’s return of an indictment after being instructed on only certain theories 

of murder does not reflect a determination that those are the only viable 

theories available, much less that murder has been proven under them 

beyond a reasonable doubt.

The Attorney General also argues, based on the grand jury transcript,

that Rivera separately failed to make a prima facie showing that he “could 

not be convicted of first or second degree murder” after Senate Bill No. 1437. 

(§ 1170.95, subd. (a)(3).) Again relying on Nguyen, the Attorney General 

claims that “[t]here was no evidence presented of an underlying felony or 

target offense which could serve as a basis for felony murder or murder under 
23

the natural and probable consequences doctrine. Rather, the evidence 

supported a murder based on malice such that [Rivera] could still be 

convicted under the current law.” 

We disagree with Nguyen to the extent it suggests that relief under 

section 1170.95 is precluded as a matter of law simply because there is no 

mention in the pre-plea record of an underlying offense that could support 

liability for felony murder or murder under the natural and probable 

consequences doctrine. (See Nguyen, supra, 53 Cal.App.5th at pp. 1167–

1168.) In our view, when a petitioner disputes that the evidence presented at 

a pre-plea proceeding demonstrates his or her guilt under a still-valid theory

of murder, and no “ ‘readily ascertainable facts’ ” definitively prove otherwise,

a trial court cannot deny a petition at the prima facie stage without resorting 

to “ ‘factfinding involving the weighing of evidence or the exercise of 

discretion.’ ” (Duchine, supra, 60 Cal.App.5th at p. 812, quoting Drayton, 

supra, 47 Cal.App.5th at p. 980.)

12

 

We need not decide whether under other circumstances a trial court 

could rely on a grand jury transcript to deny a section 1170.95 petition for 

failure to make the required prima facie showing. In People v. Cooper (2020) 

54 Cal.App.5th 106, review granted Nov. 10, 2020, S264684, we left open the 

possibility that if a petitioner filed a facially sufficient petition but thereafter 

failed to submit briefing, a court could rely on a preliminary hearing 

12 Nguyen, which cites Drayton for this principle (Nguyen, supra, 

53 Cal.App.5th at p. 1166), could be read to imply that the record’s silence 

about an underlying felony or target offense before a petitioner enters a plea 

is a “readily ascertainable fact” establishing that the petitioner was convicted 

under a still-valid theory of murder. For the reasons given above, however, 

we disagree that evidence or arguments presented to a grand jury or at a 

preliminary hearing definitively establish the theories under which a 

petitioner was or could be convicted of murder.
24

transcript to deny the petition. (Id. at pp. 125–126; see People v. Verdugo, 

supra, 44 Cal.App.5th at pp. 329–330.) Likewise, we leave open the 

possibility that if a petitioner who entered a plea to murder after being 

indicted submits a form petition making the required declarations but does 

not in any way contest the evidence presented to the grand jury, a trial court 

can rely on the grand jury transcript to deny the petition before holding an 

evidentiary hearing. 

Here, however, Rivera not only filed a facially sufficient petition but, 

with the assistance of counsel, offered a theory under which the evidence 

presented to the grand jury was consistent with his guilt of murder under the 

natural and probable consequences doctrine, based upon an intent to 

participate in a target offense of assault. (See In re R.G., supra,

35 Cal.App.5th at p. 146.) In doing so, he created a factual dispute that 

cannot be resolved at the prima facie stage since nothing in the record 

definitively foreclosed his theory. Accordingly, he is entitled to a hearing 

under section 1170.95, subdivision (d).13

III.

DISPOSITION

The July 19, 2019 order denying River’s section 1170.95 petition is 

reversed. On remand, the trial court is directed to issue an order to show 

cause and conduct further proceedings as required under section 1170.95, 

subdivision (d).

13 The law is unsettled about what showing the prosecution must make 

at such a hearing to establish that a petitioner is ineligible for relief. 

(Compare, e.g., People v. Duke, supra, 55 Cal.App.5th 113, with People v. 

Rodriguez (2020) 58 Cal.App.5th 227, review granted Mar. 10, 2020, 

S266652.) Though we are not called upon to resolve the issue in this appeal, 

we recognize that the trial court faces a difficult task on remand, including in 

determining what weight to give the evidence already in the record.
25

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Sanchez, J.

People v. Rivera A158284
26

Trial Court:

Superior Court of the County of San Mateo

Trial Judge:

Hon. Lisa A. Novak

Counsel for Defendant and Appellant:

Janice M. Lagerlof, under appointment by the Court of Appeal

Counsel for Plaintiff and Respondent:

Xavier Becerra, Attorney General

Lance E. Winters, Chief Assistant Attorney General

Jeffrey M. Laurence, Senior Assistant Attorney General

Rene A. Chacon, Supervising Deputy Attorney General

Julia Y. Je, Deputy Attorney General

People v. Rivera A158284