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Filed 10/17/23 P. v. Harris CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Tehama)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID WAYNE HARRIS,

Defendant and Appellant.

C097002

(Super. Ct. No. NCR82211)

Defendant David Wayne Harris pleaded no contest to attempted murder and 

felony street terrorism. The trial court sentenced him to a stipulated term of 22 years 

eight months in state prison. Defendant later filed a petition for resentencing under Penal 

Code former section 1170.95 (now section 1172.6).1 The trial court denied the petition, 

finding that defendant did not establish a prima facie claim for relief.

Defendant now contends that because nothing in the record of conviction 

conclusively precludes him from relief as a matter of law, the trial court should have 

1 Undesignated statutory references are to the Penal Code. The Legislature amended 

former section 1170.95 effective January 1, 2022, under Senate Bill No. 775 (2021-2022 

Reg. Sess.) (Stats. 2021, ch. 551). Effective June 30, 2022, the Legislature renumbered 

former section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, 

ch. 58, § 10.) This opinion will refer to section 1172.6.
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issued an order to show cause and held an evidentiary hearing on the petition. To the 

extent the trial court relied on the preliminary hearing transcript to find him ineligible for 

resentencing, defendant argues the trial court engaged in improper weighing of evidence 

and fact finding at the prima facie stage.

We will reverse and remand for the trial court to issue an order to show cause and 

to conduct further proceedings to determine whether resentencing is warranted.

BACKGROUND

In July 2011, law enforcement responded to a stabbing at a McDonald’s restaurant 

in Tehama County. The People charged defendant with attempted murder with malice 

aforethought (§§ 664, 187, subd. (a) -- count 1), assault with a deadly weapon (§ 245, 

subd. (a)(1) -- count 2), and street terrorism (§ 186.22, subd. (a) -- count 5). The 

attempted murder charge included enhancement allegations for street terrorism (§ 186.22, 

subd. (b)(5)), great bodily injury (§ 12022.7, subd. (a)), and personal use of a deadly

weapon, a knife (§ 12022, subd. (b)(1)). The assault charge included enhancement 

allegations for great bodily injury (§ 12022.7, subd. (a)) and gang benefit (§ 186.22, 

subd. (b)(1)(B)). Charges were also asserted against codefendants.

At the preliminary hearing, several police officers testified about statements made 

by various witnesses. The victim, A.D., reported that four males jumped him and stabbed 

him twice. One witness said she was with A.D. when several males approached them and 

started fighting. Another witness told officers he saw several males fighting and yelled at 

them to stop. Yet another witness told officers he noticed four males emerge from 

underneath a bridge and approach the victim; they began to fight and one of the men 

punched the victim with a stabbing motion.

Codefendant Jessica Watkins gave several statements to police officers. She 

admitted being with C.P. and four young men -- defendant (a purported Norteño gang 

member), J.C., R.D., and D.B. (known by the gang moniker “Droopy”) -- when the 
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stabbing occurred.2 According to Watkins, defendant, J.C., R.D., and Droopy were 

involved in the altercation with the victim, although she did not identify whether all four 

actually attacked the victim. The group was in a car when defendant saw the victim and 

said, “We’re going to stick this fool, we’re going to stab him.” At some point, she heard 

J.C. say he had a knife. Watkins parked in the McDonald’s parking lot, and the four men 

got out and walked towards a bridge or slough area when she heard defendant ask if 

anyone had a knife. She later saw defendant attack the victim. The four men ran back to 

the car and the group left; Watkins heard defendant telling the others to get rid of the 

knife and she saw Droopy throw what Watkins believed to be a knife and pieces of a gun 

out the car window.

Watkins’s sister told police officers that on the day of the stabbing Watkins told 

her “one of our homies just stabbed a scrap.” Watkins’s sister claimed that she, Watkins, 

and defendant were all Norteño gang members, and she thought defendant might have 

stabbed someone to try to earn a gang tattoo.

C.P. reported she was with the group at the McDonald’s when the four men got 

out of the car and chased the victim; defendant and Droopy were in the lead, and J.C. and 

R.D. followed behind them. The victim either fell or was pushed to the ground, and C.P.

did not see anything after the victim was on the ground. When the four men returned to 

the car, C.P. heard defendant say something that she understood to mean defendant had 

stabbed the victim. C.P. saw Droopy throw a knife and gun out the car window, which 

she said defendant had given to him. She also said defendant admitted to her that he 

stabbed the victim.

Codefendant R.D. claimed he was in a car with defendant and the others when he 

heard defendant say, “I know that fool,” after seeing the victim walking down the street. 

2 Because some of those involved were or may have been minors at the time of the 

incident, we refer to them by their initials. (See Cal. Rules of Court., rule 8.90(b)(9).)
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Defendant asked him if he had a knife. According to R.D., he and the three other men 

got out of the car and hid behind bushes to wait for the victim. As the victim passed, they 

charged him from their hiding spot; defendant and Droopy were in front and he and J.C.

were in the back. R.D. thought he saw the victim pull out a gun so he and J.C. slowed 

down while defendant and Droopy chased the victim around a pickup truck; R.D. could 

not see what happened behind the truck, but he later saw the victim holding his stomach 

and bleeding. Defendant told R.D. he had stabbed the victim because he believed the 

victim was a Sureño gang member.

Codefendant J.C. identified defendant as the person who stabbed the victim. 

He said Droopy was also involved in the stabbing. After attacking the victim, the group 

got back in their car and J.C. saw defendant with a bloody knife; defendant gave the knife 

to Droopy to throw away. Defendant admitted to J.C. that he had stabbed the victim, and 

J.C. believed the stabbing was gang related because both defendant and Droopy were 

Norteño gang members.

Following his arrest, defendant told police he stabbed the victim two or three times 

and then gave the knife to Droopy to throw over a bridge. Various Norteño gang indicia 

were found on or in defendant’s possession when he was arrested. During the 

preliminary hearing, a gang expert opined that the stabbing was for the benefit of a 

criminal street gang.

In February 2012, defendant pleaded no contest to count 5 (street terrorism) and a 

modified count 1 (attempted murder) in exchange for a stipulated term of 22 years eight 

months in prison and dismissal of the remaining charges and allegations. As to count 1, 

defendant specifically admitted that he committed the offense for the benefit of, at the 

direction of, and in association with a criminal street gang with the specific intent to 

promote, further, and assist in criminal conduct by gang members. He further admitted 

that he personally caused great bodily injury. The trial court granted the parties’ 

request to strike “with malice aforethought” from the count 1 attempted murder charge 
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and changed the associated gang enhancement allegation from section 186.22, 

subdivision (b)(5) to section 186.22, subdivision (b)(1)(C). The parties stipulated to the 

preliminary hearing transcript as the factual basis for defendant’s plea, but defendant did 

not admit any particular facts from the preliminary hearing. The trial court subsequently 

imposed the stipulated prison term.

In April 2022, defendant filed a section 1172.6 petition for resentencing. 

Defendant’s form petition alleged, among other things, that (1) a complaint or 

information was filed against him that allowed the prosecution to proceed under a theory 

of attempted murder under the natural and probable consequences doctrine; (2) that he 

was convicted of attempted murder after accepting a plea in lieu of a trial at which he 

could have been convicted of attempted murder; and (3) that he could no longer be 

convicted of attempted murder because of changes made to sections 188 and 189, 

effective January 1, 2019. Defendant requested the appointment of counsel.

The trial court considered defendant’s petition at a hearing in September 2022. 

When the trial court asked whether defense counsel could cite anything in the record of 

conviction indicating that the natural and probable consequences doctrine had applied, 

counsel responded that he did not see any such indication. The trial court denied the 

petition after finding that defendant had not made the requisite prima facie showing.

DISCUSSION

Defendant argues the trial court erred in denying his petition at the prima facie 

stage because nothing in the record of conviction conclusively shows he is ineligible for 

relief under section 1172.6. In defendant’s view, his plea to attempted murder without 

malice and his admission of the great bodily injury enhancement are consistent with an 

attempted murder conviction based on the natural and probable consequences doctrine --

a theory that is no longer valid. To the extent the trial court relied on the preliminary 

hearing transcript to deny the petition, defendant asserts the trial court erred because he 
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did not admit the truth of any facts asserted at the preliminary hearing when he entered 

his plea.

The People counter that defendant is ineligible for relief as a matter of law because

the preliminary hearing transcript establishes that defendant was sentenced for attempted 

murder as the actual attempted killer.

A

Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended 

the felony-murder rule and the natural and probable consequences doctrine “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.” (Stats. 2018, ch. 1015, § 1, subd. (f).)

Senate Bill No. 1437 also added what is now section 1172.6 (Stats. 2018, 

ch. 1015, § 4; Stats. 2022, ch. 58, § 10). Effective January 1, 2022, Senate Bill No. 775 

amended section 1172.6 to expand those eligible for relief to, among others, persons 

convicted of attempted murder based on the natural and probable consequences doctrine. 

(Stats. 2021, ch. 551, § 1, subd. (a).) Section 1172.6, subdivision (a) now provides that a 

person convicted of attempted murder under the natural and probable consequences 

doctrine may file a petition for resentencing and be resentenced if all of the following 

conditions apply: (1) a complaint or information was filed against the petitioner that 

allowed the prosecution to proceed under a theory of attempted murder under the natural 

and probable consequences doctrine; (2) the petitioner was convicted of attempted 

murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner 

could have been convicted of attempted murder; and (3) the petitioner could not presently 

be convicted of attempted murder because of changes to Sections 188 and 189 made 

effective January 1, 2019.

If the petition presents a prima facie showing of entitlement to relief, the trial 

court must issue an order to show cause. (§ 1172.6, subd. (c).) The trial court must 
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then hold a hearing to determine whether petitioner is entitled to resentencing. (§ 1172.6, 

subd. (d)(1).)

The prima facie inquiry under section 1172.6, subdivision (c) is limited, and the 

bar for establishing a prima facie claim for relief is very low. (People v. Lewis (2021) 

11 Cal.5th 952, 971.) The trial court “ ‘ “takes petitioner’s factual allegations as true and 

makes a preliminary assessment regarding whether the petitioner would be entitled to 

relief if his or her factual allegations were proved.” ’ ” (Ibid.) Although the trial court 

may rely on the record of conviction in determining whether defendant has made a prima 

facie showing, it “should not engage in ‘factfinding involving the weighing of evidence 

or the exercise of discretion.’ ” (Id. at p. 972.)

We independently review a trial court’s determination as to whether a petitioner 

has made a prima facie showing. (People v. Harden (2022) 81 Cal.App.5th 45, 52.)

B

The information initially charged defendant with three substantive offenses: 

attempted murder with malice aforethought, assault with a deadly weapon, and street 

terrorism. (People v. Reed (1996) 13 Cal.4th 217, 224 [the record of conviction includes 

the charging document].) The attempted murder charge did not limit the prosecutor from 

convicting defendant on any available theory of attempted murder liability, which at the 

time of defendant’s no contest plea in February 2012 could have included liability under 

the natural and probable consequences doctrine. (See e.g., People v. Eynon (2021) 

68 Cal.App.5th 967, 977-978.)

Defendant pleaded no contest to attempted murder. But he did so only after the 

trial court granted the parties’ request to strike “with malice aforethought” from the 

information. And pleading no contest to the generic crime of attempted murder is not the 

same as admitting a specific theory of attempted murder.

“Attempted murder requires the specific intent to kill and the commission of a 

direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee 
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(2003) 31 Cal.4th 613, 623; see People v. Smith (2005) 37 Cal.4th 733, 739.) For 

purposes of the offense, “[i]ntent to unlawfully kill and express malice are, in essence, 

‘one and the same.’ ” (Smith, at p. 739.) To be guilty of attempted murder, then, a 

defendant must harbor express malice toward the particular victim (ibid.), unless that 

malice is imputed to the defendant under some other theory such as the natural and 

probable consequences doctrine.

Under the natural and probable consequences doctrine, an aider and abettor may 

be culpable for a nontarget, or unintended, offense committed while committing a target 

offense. (People v. Favor (2012) 54 Cal.4th 868, 874.) “By its very nature, aider and 

abettor culpability under the natural and probable consequences doctrine is not premised 

upon the intention of the aider and abettor to commit the nontarget offense because the 

nontarget offense was not intended at all. It imposes vicarious liability for any offense 

committed by the direct perpetrator that is a natural and probable consequence of the 

target crime.” (People v. Canizalez (2011) 197 Cal.App.4th 832, 852.) Attempted 

murder can be a natural and probable consequence of a charged assault. (See e.g., People 

v. Hoang (2006) 145 Cal.App.4th 264, 271-274.)

Here, by explicitly deleting the phrase “with malice aforethought” from the 

attempted murder charge in order to facilitate defendant’s plea to the revised count (i.e., 

without the malice language), we conclude it is at least possible that defendant may not

have admitted that he personally harbored express malice, or the required intent to kill,

but rather that one of his codefendants who also attacked the victim harbored express 

malice, which was imputed to him under the natural and probable consequences doctrine.

Defendant has thus offered a theory under which the evidence presented during the 

preliminary hearing was consistent with his guilt of attempted murder under the natural 

and probable consequences doctrine, based upon an intent to participate in the charged 

target offense of assault with a deadly weapon. (§ 188, subd. (a)(3) [prohibiting imputing 

malice based solely on participation in a crime].) In doing so, he created a factual dispute 
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that cannot be resolved at the prima facie stage since nothing in the record definitively 

forecloses his theory. (Lewis, supra, 11 Cal.5th at pp. 971-972.) 

The fact that attempted murder requires an intent to kill, and that defendant 

pleaded to the offense, does not alone answer whether defendant personally intended to 

kill the victim, or whether that intent was transferred to him under the natural and 

probable consequences doctrine. (People v. Montes (2021) 71 Cal.App.5th 1001, 1007-

1008 [trial court erred in inferring from the jury’s finding of guilt of attempted murder 

that the jury must have found the defendant personally possessed the intent to kill where 

the conviction under a natural and probable consequences theory was possible].) Nor 

does defendant’s admission to the great bodily injury enhancement foreclose the 

possibility that he pleaded to attempted murder based on a natural and probable 

consequences theory without personally harboring malice. The enhancement itself does 

not include an intent to kill component (§ 12022.7), and it does not establish as a matter 

of law that he intended to kill the victim or that he was the sole person who stabbed the 

victim.

Indeed, this is not a case in which the only possible scenario is that defendant was 

the sole perpetrator. (Cf. People v. Delgadillo (2022) 14 Cal.5th 216, 233 [the defendant 

was “not entitled to any relief under section 1172.6” because he “was the actual killer and 

the only participant in the killing”].) Here, defendant and at least three others were 

involved in the melee that led to the stabbing and attempted murder charge. Testimony at 

the preliminary hearing indicates that more than one codefendant may have had a knife

and that the victim may have been stabbed by more than one person.

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3 Courts are divided on the extent to which a trial court may rely on the preliminary 

hearing transcript to deny a resentencing petition at the prima facie stage (compare 

People v. Flores (2022) 76 Cal.App.5th 974, 988-992 [preliminary hearing transcript 

cannot establish ineligibility as a matter of law even if a defendant stipulated to the 
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Although there was some preliminary hearing testimony that defendant confessed

to stabbing the victim, an affirmative finding that he did so would require factfinding that 

is not permitted at the prima facie stage. (See People v. Duchine (2021) 60 Cal.App.5th 

798, 815 [the time for weighing and balancing and making findings on the ultimate issues 

arises at the evidentiary hearing stage rather than the prima face stage; the record should 

be consulted at the prima facie stage only to determine readily ascertainable facts]; 

People v. Drayton (2020) 47 Cal.App.5th 965, 981-983 [in making an assessment of the 

petitioner’s prima facie showing, the trial court should not have evaluated and weighed 

the evidence based on testimony at the preliminary hearing but instead should have 

accepted petitioner’s asserted facts as true], abrogated on other grounds in Lewis, supra, 

11 Cal.5th at pp. 963-964].)

In some cases the record may reveal that a defendant admitted more than the 

elements of the offense charged, and such additional admissions may preclude relief. But 

a defendant is not ineligible for relief where he made no admissions related to the 

attempted murder other than pleading no contest to the count as charged. (People v. 

Rivera, supra, 62 Cal.App.5th at p. 234.) Here, during the change of plea hearing, 

defendant did not admit any particular facts presented at the preliminary hearing; he did 

not admit confessing that he had stabbed the victim. (People v. French (2008) 43 Cal.4th 

36, 50-51 [a defendant is not required to personally admit the truth of the factual basis of 

the plea, and the defendant’s stipulation to the factual basis for the plea does not 

constitute a binding admission for all purposes].) Simply being held to answer on a 

transcript as the factual basis for plea] and People v. Rivera (2021) 62 Cal.App.5th 217, 

235 [same for grand jury transcript] with People v. Nguyen (2020) 53 Cal.App.5th 1154, 

1166-1168 [preliminary hearing transcript is part of record of conviction that may be 

considered in determining whether a petitioner has satisfied his prima facie burden]). 

The California Supreme Court recently granted review in People v. Patton (2023) 

89 Cal.App.5th 649, review granted June 28, 2023, S279670, which considers whether 

the trial court engaged in impermissible judicial factfinding by relying on the preliminary 

hearing transcript to deny the defendant’s section 1172.6 petition at the prima facie stage. 
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charge or allegation does not constitute a factual finding that the charge or allegation is 

true, nor does it constitute a determination that the charge or allegation is supported by 

substantial evidence. (People v. Eynon (2021) 68 Cal.App.5th 967, 975-976.) Indeed, at 

an evidentiary hearing under section 1172.6, subdivision (d)(3), defendant will have an 

opportunity to present evidence to the contrary.

Because defendant’s petition alleged the facts necessary for relief under 

section 1172.6, and nothing in the record conclusively demonstrates that he is ineligible 

for relief as a matter of law, defendant’s petition made a prima facie showing of 

entitlement to relief under section 1172.6. (§ 1172.6, subd. (c).) We will reverse and 

remand for further proceedings under the statute, but we express no opinion on whether 

defendant is entitled to resentencing.

DISPOSITION

The order denying defendant’s section 1172.6 petition is reversed, and the matter 

is remanded with directions to issue an order to show cause and conduct further 

proceedings in accordance with section 1172.6, subdivision (d).

 /S/

MAURO, J.

We concur:

 /S/

EARL, P. J.

 /S/

KRAUSE, J.