Filed 7/31/24 P. v. Blumberg CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL JAMES BLUMBERG,

Defendant and Appellant.

 B332537

 (Los Angeles County

 Super. Ct. No. MA015125)

Appeal from an order of the Superior Court of Los Angeles

County, Daviann L. Mitchell, Judge. Reversed.

Steven A. Torres, under appointment by the Court of Appeal,

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant

Attorney General, Noah P. Hill and Heidi Salerno, Deputy 

Attorneys General, for Plaintiff and Respondent.

______________________________
2

In January 2016, Michael James Blumberg (Blumberg) 

pleaded no contest to the attempted murder of Ramon Zuniga 

(Zuniga). He admitted as true allegations that he personally used 

a firearm in connection with the offense (Pen. Code, § 12022.5, 

subd. (a))

1 and that he inflicted great bodily injury on Zuniga

(§ 12022.7, subd.(a)). Blumberg did not, however, admit to any 

particular theory of attempted murder or to harboring an intent 

to kill Zuniga.

When Blumberg entered his plea in 2016, a defendant 

could be convicted of attempted murder pursuant to the natural 

and probable consequences doctrine. As a result, “[u]nder the 

law at that time, it was not necessary to prove that the defendant 

intended that the attempted murder be committed or even that 

the defendant subjectively foresaw that attempted murder could 

result.” (People v. Estrada (2024) 101 Cal.App.5th 328, 336

(Estrada).)

Several years later, however, the Legislature enacted 

amendments to the Penal Code that abolished the natural 

and probable consequences doctrine as a basis for attempted 

murder. The Legislature also enacted section 1172.6 (formerly 

section 1170.95), which establishes a procedure whereby persons 

convicted under the now-invalid theory may challenge their 

convictions and seek resentencing. (§ 1172.6, subd. (a).) Pursuant 

to that procedure, a trial court must hold a hearing to determine 

whether a petitioner has established a prima facie case for 

section 1172.6 relief. (§ 1172.6, subd. (c).) If the petitioner has 

done so, the court then must conduct an evidentiary hearing 

at which the prosecution bears the burden of establishing the 

petitioner’s guilt of attempted murder beyond a reasonable doubt 

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

under current law. (See People v. Guiffreda (2023) 87 Cal.App.5th 

112, 123 (Guiffreda).)

Blumberg filed a petition seeking section 1172.6 relief 

in the trial court. In its written response to the petition, the 

prosecution conceded Blumberg’s entitlement to an evidentiary 

hearing, and the court scheduled a hearing for July 10, 2023. 

Although the court announced at the outset of the July 10

proceeding that it was conducting an “evidentiary hearing,” it

made no evidentiary findings; instead, it concluded that Blumberg’s 

guilty plea rendered him ineligible for relief “as a matter of law.” 

The court then stated at the conclusion of the hearing that it 

had “misspoke[n]” in describing the proceeding as an evidentiary 

hearing. Defense counsel did not object to, or otherwise seek to 

clarify, the court’s statement.

Blumberg now asks us to reverse the trial court’s order 

denying his petition. He contends the July 10 proceeding 

constituted an evidentiary hearing, and that the prosecution 

failed to meet its burden at the hearing of proving him guilty 

of attempted murder beyond a reasonable doubt. 

We conclude, however, that the record demonstrates the 

trial court conducted only a prima facie hearing on Blumberg’s 

petition during the July 10 proceeding. But because we also 

conclude the court erred in denying Blumberg’s petition at the 

prima facie stage, we remand with instructions that the court 

conduct an evidentiary hearing pursuant to section 1172.6, 

subdivision (d)(3).
4

FACTUAL SUMMARY AND PROCEDURAL HISTORY2

A. Blumberg’s Plea

In March 2015, the Los Angeles County District Attorney’s 

Office filed an information charging Blumberg with attempted 

murder (count 1, §§ 187, subd. (a), 664) and conspiracy to “commit a 

crime” (count 2, § 182, subd. (a)(1)).

With respect to the attempted murder count, the

information does not provide any alleged facts surrounding the 

crime or the prosecution’s theory of guilt. Rather, the charging 

document asserts in a conclusory fashion only that Blumberg 

“unlawfully and with malice aforethought attempt[ed] to

murder . . . Zuniga,” and that Blumberg did so “willfully, 

deliberately and with premeditation.”

As to the conspiracy count, the information provides more 

detail concerning the prosecution’s theory. The five overt acts 

alleged in that count suggest that the prosecution intended to prove 

that Blumberg and one of his fellow Temple Street gang members 

confronted Zuniga, allegedly a member of the BLC gang, on the 

street; that Blumberg shot Zuniga; and that Blumberg’s companion 

then aided him in fleeing the area and, ultimately, the country.

In January 2016, Blumberg pleaded no contest to the 

attempted murder of Zuniga in an amended count, from which

the prosecution had dismissed the allegations that Blumberg 

had committed the offense willfully, deliberately, and with 

premeditation. Blumberg also admitted as true the allegations 

that he had “personally use[d] a firearm” in committing the crime 

(§ 12022.5, subd. (a)) and had “personally inflict[ed] great bodily 

injury” upon Zuniga (§ 12022.7, subd. (a).) Blumberg did not, 

2 We summarize here only the facts and procedural history 

relevant to our resolution of this appeal. 
5

however, admit any other facts in connection with his plea; instead, 

pursuant to People v. West (1970) 3 Cal.3d 595, he entered “ ‘a plea 

of nolo contendere, not admitting a factual basis for the plea.’ ” 

(Estrada, supra, 101 Cal.App.5th at p. 334.) At the prosecution’s 

request, the court dismissed the conspiracy charged in count 2 of 

the information.

The trial court sentenced Blumberg to 22 years in prison.

B. Subsequent Changes to the Law of Attempted 

Murder

Three years after Blumberg entered his plea, effective 

January 1, 2019, “the Legislature passed Senate Bill [No.] 1437 

[(2017–2018 Reg. Sess.)] ‘to amend the felony murder rule and the 

natural and probable consequences doctrine, as it relates to murder, 

to ensure that murder liability is not imposed on a person who is 

not the actual killer, did not act with the intent to kill, or was not a 

major participant in the underlying felony who acted with reckless 

indifference to human life.’ [Citation.]” (People v. Lewis (2021) 

11 Cal.5th 952, 959 (Lewis).)

The bill accomplished this objective by, among other 

changes, amending section 188 to provide that “[m]alice shall not

be imputed to a person based solely on his or her participation in a 

crime.” (§ 188, subd. (a)(3); People v. Coley (2022) 77 Cal.App.5th 

539, 543 (Coley).) The bill also added section 1172.6, which 

provides a procedure whereby “convicted murderers who could not 

be convicted under the law as amended” may petition to have their 

conviction vacated and be resentenced on any remaining counts. 

(Lewis, supra, 11 Cal.5th at p. 959.)

Effective January 1, 2022, the Legislature enacted Senate 

Bill No. 775 (2021–2022 Reg. Sess.), which, as relevant here,

expanded the scope of section 1172.6’s relief to defendants convicted 

of “attempted murder under the natural and probable consequences 
6

doctrine.” (§ 1172.6, subd. (a)(1); Coley, supra, 77 Cal.App.5th at 

p. 548.)

If a section 1172.6 petition contains all the required 

information, including “[a] declaration by the petitioner that 

the petitioner is eligible for relief,” the trial court must appoint 

counsel, if requested (§ 1172.6, subd. (b)(1)(A) & (b)(3)); the 

prosecutor must file and serve a response to the petition, to 

which the petitioner may reply (§ 1172.6, subd. (c)); and “[a]fter 

the parties have had an opportunity to submit briefings, the court 

shall hold a hearing to determine whether the petitioner has made 

a prima facie case for relief.” (Ibid.)

“ ‘In reviewing any part of the record of conviction at this 

preliminary juncture, a trial court should not engage in “factfinding 

involving the weighing of evidence or the exercise of discretion.” 

[Citation.] . . . [T]he “prima facie bar was intentionally and 

correctly set very low.” ’ ” (Estrada, supra, 101 Cal.App.5th 

at p. 337, quoting Lewis, supra, 11 Cal.5th at p. 972.) “ ‘At

the prima facie stage, a court must accept as true a petitioner’s 

allegation that he or she could not currently be convicted of a 

homicide offense because of [Senate Bill No. 1437’s] changes to 

[the law], unless the allegation is refuted by the record. [Citation.] 

And this allegation is not refuted by the record unless the record 

conclusively establishes every element of the offense.’ ” (Estrada,

supra, at p. 337, quoting People v. Curiel (2023) 15 Cal.5th 433, 

463.) “If the petitioner makes a prima facie showing of eligibility, 

the trial court must issue an order to show cause and hold an 

evidentiary hearing.” (Estrada, supra, at p. 337.)

Where a trial court denies a section 1172.6 petition based 

on the failure to make a prima facie case for relief, our review is 

de novo. (See Coley, supra, 77 Cal.App.5th at p. 545.)
7

C. Blumberg’s Section 1172.6 Petition

On October 13, 2022, Blumberg filed a pro se petition 

for section 1172.6 relief. Checking boxes on a preprinted form, 

Blumberg attested that he “could not presently be convicted of . . . 

attempted murder because of changes made to [section] 188.” 

The trial court appointed counsel for Blumberg and solicited a 

response from the prosecution. In its response to the petition, 

the prosecution “concede[d] that [Blumberg] is entitled to have 

an evidentiary hearing to determine his eligibility for resentencing.”

The court conducted a hearing on the petition on May 31, 

2023. No transcript of the hearing appears in our appellate record. 

The minute order memorializing the proceeding describes it as a 

section 1172.6 “evidentiary hearing,” but the order contains no 

evidentiary findings. Instead, the order notes only that “the People 

concede that [a] prima facie showing is found,” and provides further 

that the “case is continued to July 10, 2023.”

At the outset of the July 10 proceeding, the court announced, 

“we are here for the evidentiary hearing.” The prosecutor expressed 

surprise, explaining he had not intended to concede Blumberg’s 

entitlement to an evidentiary hearing and was not prepared to 

present any witnesses:

“[Prosecutor]: Well, I have no witnesses, Your Honor. My—

my response originally filed, and I maybe was operating under a 

misapprehension or misunderstanding, but I had conceded that the 

initial kind of the initial prima facie, filling out the boxes correctly 

had been met. But I wasn’t conced[ing] necessarily that once 

[defense counsel] had been—that further inquiry into the prima 

facie stage would be necessary. And that under that further 

inquiry, he may not be eligible for resentencing.”

The court nonetheless went forward with the hearing. It did 

not, however, make any evidentiary findings. Instead, it concluded
8

that Blumberg was ineligible for section 1172.6 relief “as a matter 

of law” because Blumberg “was the only person charged[,] and he 

admitted the personal use of a firearm and . . . personal infliction 

of great bodily injury” allegations in connection with his plea.

At the conclusion of the July 10 hearing, the court clarified 

that it had misspoken when it described the proceeding as an 

evidentiary hearing: 

“The court: I misspoke . . . regarding the [order to show 

cause] of today’s evidentiary hearing. And I believe the court 

making [its] finding as [a matter of] law, I don’t have to go down 

the full path of the evidentiary hearing. This was regarding the 

hearing as it was set for—I misspoke, and when I saw this was 

[the] evidentiary hearing, I looked at my notes and said today 

was in regard to the evidentiary hearing; so I wasn’t clear. That 

is[,] the findings that I made were the preliminary findings, not 

requiring a full evidentiary hearing, and I did not . . . I’m not 

considering that because I think this is as a matter of law based 

on what I had before me when I misspoke. That was my error.”

Defense counsel did not object to the court’s comments

characterizing the proceeding as a “preliminary” hearing, rather 

than an evidentiary hearing.

Blumberg timely appealed.

DISCUSSION

Blumberg contends that (1) the July 10, 2023 hearing 

on his petition constituted an evidentiary hearing at which 

the prosecution bore the burden of proving him guilty of 

attempted murder beyond a reasonable doubt, and (2) because 

the prosecution failed to meet its burden, we must grant his 

petition for resentencing. (See Guiffreda, supra, 87 Cal.App.5th 

at p. 123.) We conclude, however, that the trial court conducted 
9

only a prima facie hearing on Blumberg’s petition, and we 

therefore remand the matter for an evidentiary hearing. 

Blumberg is correct that the trial court initially described 

the July 10 proceeding as an “evidentiary hearing.” But the court 

did not make any evidentiary findings during the hearing; instead, 

it made only “preliminary findings” concerning Blumberg’s 

eligibility for section 1172.6 relief “as a matter of law.” And when 

the court clarified that it had “misspoke[n]” in describing the 

proceedings as an evidentiary hearing, defense counsel did not 

object. Moreover, we find unconvincing Blumberg’s contention 

that the court’s misstatement violated his due process rights 

or otherwise prejudiced him. The authorities Blumberg cites 

in support of his argument are inapposite; none involves a 

section 1172.6 proceeding or a misstatement by a court. We 

therefore agree with the Attorney General that the July 10 

proceeding constituted only a prima facie hearing on Blumberg’s 

petition.

We are not persuaded, however, by the Attorney General’s 

argument that remand is unnecessary because Blumberg is 

ineligible for section 1172.6 relief as a matter of law. Nothing in 

the record of conviction conclusively forecloses Blumberg’s eligibility 

for relief.

Blumberg’s “plea to the attempted murder charge does not 

answer the question of whether intent could have been imputed 

to him.” (Estrada, supra, 101 Cal.App.5th at p. 338.) “Because 

the crime of attempted murder was generically charged, the 

[information] allowed the prosecution to proceed on a theory of 

attempted murder under the natural and probable consequences 

doctrine.” (Id. at pp. 337–338.) And Blumberg did not plead to “any 

specific theory of attempted murder,” nor did he “admit he harbored 

an intent to kill.” (Id. at p. 338.)
10

Blumberg’s admission of the enhancements charged in 

the information likewise fails to establish his ineligibility for 

section 1172.6 relief. Neither the firearm use enhancement 

(§ 12022.5, subd. (a)) nor the great bodily injury enhancement 

(§ 12022.7, subd. (a)) requires a specific intent. (See People v. 

Wardell (2008) 162 Cal.App.4th 1484, 1488 [“a . . . section 12022.5, 

subdivision (a) personal use of a firearm enhancement does not 

require specific intent”]; People v. Elder (2014) 227 Cal.App.4th 411, 

424 [“[s]ection 12022.7 does not require that the defendant intend 

to inflict [great bodily injury]”.) Therefore, Blumberg’s admission 

of the enhancements does “not establish that he acted with the 

requisite malice aforethought” for an attempted murder conviction 

under the amended law. (Estrada, supra, 101 Cal.App.5th at 

p. 338.)

Finally, the prosecution’s decision to charge Blumberg alone 

does not conclusively establish that he was the sole perpetrator 

in the attempted murder who acted with the intent to kill. “[A]

charging decision does not establish any facts as a matter of

law. [Citation.] [And] we are aware of no authority requiring 

prosecutors to try all codefendants together, so this single charging

document does not foreclose the possibility of other people having 

been charged for related crimes.” (Estrada, supra, 101 Cal.App.5th 

at p. 339.) Indeed, here, the allegations in count 2 of the 

information indicate that the prosecution believed another person

was involved in the crime. At that time, “the information did not 

foreclose the prosecution from presenting imputed malice before 

a jury regardless of whether it charged others.” (Ibid.) That

the prosecution charged only Blumberg in the information thus 

does not establish his ineligibility for section 1172.6 relief as 

a matter of law.
11

Accordingly, we reverse the trial court’s order denying 

Blumberg’s petition at the prima facie stage and remand for 

an evidentiary hearing in accordance with section 1172.6, 

subdivision (d)(3).

DISPOSITION

The July 10, 2023 order denying Blumberg’s section 1172.6 

petition is reversed, and the matter is remanded for an evidentiary 

hearing pursuant to section 1172.6, subdivision (d)(3). 

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

WEINGART, J.

KELLEY, J.*

* Judge of the San Luis Obispo Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.