Filed 2/22/24 P. v. Monroy CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JOSEPH WAYNE MONROY,

 Defendant and Appellant.

2d Crim. No. B325666

(Super. Ct. No. PA085567)

(Los Angeles County)

Joseph Wayne Monroy was convicted of voluntary 

manslaughter. (Pen. Code, § 192, subd. (a))1 He appeals an order 

denying his section 1172.6 petition for resentencing. The order 

was made at the prima facie stage of the proceedings. 

We affirm. The record of conviction shows that appellant is 

ineligible for section 1172.6 relief because he was the actual 

killer. Furthermore, at the prima facie hearing appellant’s

counsel conceded that the petition was without merit.

1 All statutory references are to the Penal Code.
2

Appellant’s Plea and Sentence

Appellant was charged with murder. (§ 187, subd. (a).) 

Pursuant to a plea bargain, in January 2018 he pleaded no 

contest to voluntary manslaughter and admitted a firearm-use 

enhancement (§ 12022.5). He was sentenced to prison for an 

aggregate term of 21 years: the upper term of 11 years for 

voluntary manslaughter plus the upper term of 10 years for the 

firearm-use enhancement. 

Relevant Facts Based on 

Transcript of Preliminary Hearing

At the preliminary hearing the following testimony was 

presented: 

Wilmar Gonzalez (Wilmar) testified that appellant had shot 

Wilmar’s brother, Rudy Gonzalez (Rudy), during an argument 

between appellant and both brothers. Appellant “just started 

shooting.” Wilmar turned around and ran away. After the 

shooting Wilmar heard appellant do “some wicked laugh” and 

say, “‘ha, ha, ha, ha. That’s what you get.’” 

A police officer testified that Wilmar said he heard two 

shots. After the second shot, Wilmar said he heard appellant say, 

“‘My shit jammed.’” 

Juan Gonzalez (Juan), a bystander, testified that he had 

seen two persons (Wilmar and Rudy) confront appellant. The two 

persons ran away. Appellant fired a gun at one of the persons. 

He “heard two shots.” 

Margarito Posadas was with Juan Gonzalez. Posadas also 

testified at the preliminary hearing. Posadas told a police officer 

that he had seen appellant remove a handgun from his pants 

pocket. Appellant “chased the victim . . . into [a] walkway.” At 

that point, Posadas heard the second of two gunshots. 
3

Rudy’s cause of death was a single gunshot wound to the 

chest. He did not sustain any other gunshot wounds. The 

petition mentioned nothing about whether appellant was the 

actual killer.

Counsel’s Concession

When appellant initially appeared with counsel before the 

trial court on the section 1172.6 petition, the court stated: “I 

know this case. I remember it. The defendant was the actual 

killer. He is the only defendant involved. [¶] There is no basis 

for the [petition] that I can see, but I’m going to set it for [a prima 

facie] hearing . . . .” Appellant’s counsel did not deny that his 

client was the actual killer. 

At the beginning of the prima facie hearing, appellant’s 

counsel conceded that the section 1172.6 petition was without 

merit. Counsel said, “I would submit on the issue of changing the 

nature of the charge [i.e., the section 1172.6 petition to vacate the 

manslaughter conviction and to be resentenced on any remaining 

counts][.] I believe that there’s no legal basis for that; however, 

we would ask that the court would consider in its discretion 

striking any of the enhancements that have been admitted.” 

(Italics added.) 

In his reply brief appellant asserts, “To the extent this 

Court . . . agrees with respondent that trial counsel’s remarks 

amounted to a concession that the petition is meritless, appellant 

has been deprived of his right to the effective assistance of 

counsel.” We disagree. It is reasonable to infer that counsel 

knew appellant was ineligible for section 1172.6 relief because he 

was the actual killer. 

In any event, “‘there is no constitutional right to the 

effective assistance of counsel’ in state postconviction 
4

proceedings,” such as the prima facie stage of a section 1172.6 

proceeding. (People v. Delgadillo (2022) 14 Cal.5th 216, 226 

(Delgadillo); see also id., at p. 227 [“there is no federal 

constitutional right to counsel under subdivision (c) [the prima 

facie stage] of section 1172.6, and the right to counsel at that 

point in the proceedings is purely statutory”].)

Appellant Failed to Make a Prima Facie Showing

“[T]he court may appropriately deny a [section 1172.6] 

petition at the prima facie stage if the petitioner is ineligible for 

relief as a matter of law.” (People v. Harden (2022) 81 

Cal.App.5th 45, 52.) “We independently review a trial court’s 

determination on whether a petitioner has made a prima facie 

showing.” (Ibid.)

Section 1172.6 “relief is unavailable if the [petitioner] 

was . . . the actual killer . . . .” (People v. Strong (2022) 13 Cal.5th 

698, 710; see also Delgadillo, supra, 14 Cal.5th at p. 233 

[“Delgadillo is not entitled to any relief under section 1172.6” 

because “the record here makes clear that Delgadillo was the 

actual killer and the only participant in the killing”].)

The preliminary hearing transcript shows that appellant

was “the actual killer and the only participant in the killing.” 

(Delgadillo, supra, 14 Cal.5th at p. 233.) Without the assistance 

or encouragement of any other person, appellant fired the bullet 

that caused Rudy’s death. Moreover, appellant admitted an 

allegation that he had personally used a firearm. Based on the 

testimony at the preliminary hearing, only one person – the 

actual killer – used a firearm. (See People v. Garrison (2021) 73 

Cal.App.5th 735, 743 [“a finding that a defendant personally used 

a firearm does not in itself prove a defendant is the actual killer 
5

[citation], [but] the facts of a particular case may support only 

that conclusion”].) 

Appellant contends that, at the prima facie stage, a 

petitioner’s allegations that he or she meets the criteria for relief 

cannot be refuted by relying on the preliminary hearing 

transcript. Appellant argues that his “properly completed 

petition for resentencing is all that was required to fulfill his 

burden at the prima facie showing phase of these proceedings.” 

“Courts of Appeal are split on the import of the preliminary 

hearing transcript in determining whether a petitioner has made 

a prima facie case for resentencing under section 1170.95.” 

(People v. Flores (2022) 76 Cal.App.5th 974, 989 (Flores).) The 

issue is pending before our Supreme Court in People v. Patton 

(2023) 89 Cal.App.5th 649, review granted June, 28, 2023, 

S279670. (See the 6/30/2023 Supreme Court News Release for 

Patton, #23-129 [“This case presents the following issue: Did the 

trial court engage in impermissible judicial factfinding by relying 

on the preliminary hearing transcript to deny defendant’s Penal 

Code section 1172.6 petition at the prima facie stage? (See People 

v. Lewis (2021) 11 Cal.5th 952 [(Lewis)].)”].) 

The preliminary hearing transcript is part of the record of 

conviction. (People v. Davenport (2023) 95 Cal.App.5th 1150, 

1159; Flores, supra, 76 Cal.App.5th at p. 989, fn. 11.) “The record

of conviction will necessarily inform the trial court’s prima facie

inquiry under section [1172.6], allowing the court to distinguish 

petitions with potential merit from those that are clearly 

meritless. This is consistent with the statute’s overall purpose: to 

ensure that murder [or manslaughter] culpability is 

commensurate with a person’s actions, while also ensuring that 

clearly meritless petitions can be efficiently addressed as part of 
6

a single-step prima facie review process.” (Lewis, supra, 11 

Cal.5th at p. 971.)

“Although evidence adduced at the preliminary hearing 

establishes, at most, only that ‘there is “sufficient cause” to 

believe defendant guilty of a public offense’ [citation], that 

limitation does not necessarily preclude the trial court from 

allowing such evidence to ‘inform the trial court's prima facie 

inquiry under section [1172.6]’ to determine whether the petition 

is ‘clearly meritless’ (Lewis, supra, 11 Cal.5th at p. 971). Nothing 

in Lewis supports the proposition that the preliminary hearing 

transcript may ‘inform the trial court's prima facie inquiry’ only 

when the [petitioner] has stipulated to the transcript as the 

factual basis for his plea.” (People v. Pickett (2023) 93 

Cal.App.5th 982, 993, review granted Oct. 11, 2023, S281643.)

Our Supreme Court has commented favorably upon the 

reliability of evidence presented at a preliminary hearing: “We 

conclude the [preliminary hearing] transcript was part of the 

record of the prior conviction, whether that term is used 

technically, as equivalent to the record on appeal [citation], or 

more narrowly, as referring only to those record documents 

reliably reflecting the facts of the offense for which the defendant 

was convicted. The transcript falls within even the narrower 

definition because the procedural protections afforded the 

defendant during a preliminary hearing tend to ensure the 

reliability of such evidence. Those protections include the right 

to confront and cross-examine witnesses and the requirement 

those witnesses testify under oath, coupled with the accuracy 

afforded by the court reporter’s verbatim reporting of the 

proceedings.” (People v. Reed (1996) 13 Cal.4th 217, 223.)
7

Accordingly, we conclude that where, as here, the 

petitioner’s conviction was based on a guilty or no contest plea so 

there is no trial transcript, a court can consider the preliminary 

hearing transcript at the prima facie stage. The preliminary 

hearing transcript unequivocally establishes that appellant was 

the actual killer. He is therefore ineligible for section 1172.6 

relief as a matter of law. Although appellant did not admit that 

he was the actual killer, his counsel justifiably conceded in open 

court that there was “no legal basis” for the petition. 

In these circumstances, the trial court did not err in 

summarily denying the petition at the prima facie stage. The 

petition was “clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 

971.) It would be a waste of judicial resources to reverse and 

remand the matter for the purpose of conducting an evidentiary 

hearing. We reject appellant’s claim that “[t]he superior court’s 

dismissal of the petition without . . . allowing appellant to present 

evidence at a hearing . . . violated appellant’s procedural due 

process rights.” “It is fundamental that courts do not engage in 

futile acts.” (In re Pratt (1980) 112 Cal.App.3d 795, 880.)

Disposition

The order denying appellant’s section 1172.6 petition is 

affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.
David W. Stuart, Judge

Superior Court County of Los Angeles

______________________________

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, Idan Ivri, Supervising Deputy 

Attorney General, Theresa A. Patterson, Deputy Attorney 

General, for Plaintiff and Respondent.