Filed 10/3/24 P. v. Ha CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

XUONG THAM HA,

Defendant and Appellant.

 B330257

 (Los Angeles County 

 Super. Ct. No. KA118272-01)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, Mike Camacho, Judge. Reversed and 

remanded with directions.

Johnathan 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, Assistant 

Attorney General, Chung L. Mar and Daniel C. Chang, Deputy 

Attorneys General, for Plaintiff and Respondent.

___________________________
2

INTRODUCTION

Xuong Tham Ha appeals from a postjudgment order 

denying his petition for resentencing on his conviction for 

attempted murder under Penal Code section 1172.6 (former 

section 1170.95).1 The superior court denied Ha’s petition at the 

prima facie stage after deciding that Ha was “convicted . . . by 

plea of being the actual shooter.” Notably, the court’s decision 

was based in part on the transcript from Ha’s preliminary 

hearing, along with the information and the transcript of Ha’s 

plea. Ha contends on appeal that the information, preliminary 

hearing transcript, and plea do not establish his ineligibility for 

resentencing as a matter of law. We agree. Accordingly, we 

reverse the order denying Ha’s section 1172.6 petition and direct 

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

evidentiary hearing. 

FACTUAL BACKGROUND2

On March 8, 2018, around 11:00 p.m., Fred Yue was at a 

karaoke bar in South El Monte with four or five of his friends, 

one of whom was Stephen.

3 At some point, a fight broke out 

between Yue’s friends (including Stephen) and other people at 

1 All undesignated statutory references are to the Penal 

Code. Effective June 30, 2022, section 1170.95 was renumbered 

to section 1172.6 with no change in text. (Stats. 2022, ch. 58, 

§ 10.)

2 For context, we provide a brief summary of the facts that 

were elicited at the preliminary hearing.

3 Yue did not remember Stephen’s last name. 
3

the bar. The fight started because a person at the bar named 

Tiger thought Stephen owed the bar money. 

Yue testified many people were involved in the fight, people 

were screaming, and it was loud. During the fight, Yue was 

standing “in the middle of everyone.” Yue heard gunfire behind 

him, turned around, and saw a man pointing a gun at the ceiling. 

The man was 13 feet away from Yue. The man then pointed the 

gun at Yue and said, “ ‘Don’t mess around in here because this is 

Tiger’s place.’ ” Yue told the man to “put down [the] gun” and to 

“calm down.” The man shot Yue once in the hip, and then Yue 

lost consciousness. He spent 20 days in the hospital with serious 

injuries. Yue identified Ha in court as the man who shot him. 

During cross-examination, defense counsel asked Yue 

about a “young friend” who was drinking with him. Yue 

identified the friend as “Leafy.” Defense counsel asked Yue if 

Leafy had a gun that night. Yue initially stated, “Yes,” but when 

defense counsel then asked, “He had a gun in the bar; didn’t he?,” 

Yue responded, “No. The individual I saw with the gun was Mr. 

Ha. That was the only one I saw with the gun that night.” Yue 

admitted that “a lot of things” about the night were confusing, 

like “what happened first, what happened next, and what other 

people [were] doing.” 

Chu Tzu Fei4 testified that on March 9, 2018, he was at the 

karaoke bar with more than 20 of his friends, including Yue and 

Stephen. At some point, a “big” argument broke out between 

Fei’s group and another group. The argument involved more 

than 10 people, and Stephen was at the center of it. A man Fei 

4 The complaint refers to Fei as Tzu Chu. Based on Fei’s 

own spelling of his name at the preliminary hearing, we refer to 

him hereafter as Fei. 
4

identified in court as Ha was standing with the group of people 

arguing with Stephen, but Fei did not hear Ha say anything. The 

room was very dark. During the argument, Fei saw Ha holding a 

“small gun.” Fei tried to take the gun away from Ha but was not 

successful, and Ha fired a shot at the ceiling and then shot Fei in 

the leg one time. When Ha fired the shot at Fei, Fei was 

standing next to Stephen. At some point, Stephen got shot as 

well. In total, Fei heard four gunshots. Fei did not see anyone 

besides Ha with a gun. 

Detective Sandra Jimenez of the Los Angeles County 

Sheriff’s Department testified she searched Ha’s home and found 

a large amount of ammunition and various guns, including a 

Glock nine-millimeter handgun and a .38-caliber revolver. 

PROCEDURAL BACKGROUND

1. Ha’s Charges and Plea

In October 2018, Ha was charged with attempted murder5

of Yue (§§ 187, subd. (a), 664), one count of assault with a firearm 

as to Ze Wei6 (§ 245, subd. (a)(2)), one count of assault with a 

firearm as to Fei (§ 245, subd. (a)(2)), possession of a shortbarreled rifle or shotgun (§ 33215), possession of a large-capacity 

magazine (§ 32310, subd. (a)), and possession of an assault 

weapon (§ 30605, subd. (a)). 

As to the attempted murder count, the People alleged Ha 

personally and intentionally discharged a firearm that caused 

5 The People did not allege that the attempted murder was 

willful, deliberate, and premeditated (§ 664, subd. (a)). 

6 During the preliminary hearing, Ze Wei was identified as 

the person referred to as “Stephen” during Yue’s and Fei’s 

testimony.
5

great bodily injury or death to Yue (§ 12022.53, subd. (d)); Ha 

personally and intentionally discharged a firearm (§ 12022.53, 

subd. (c)); Ha personally used a firearm (§ 12022.53, subd. (b));

and Ha personally inflicted great bodily injury upon Yue 

(§ 12022.7, subd. (a)). As to the two counts of assault with a 

firearm on Wei and Fei, the People alleged Ha personally used a 

firearm (§ 12022.5, subd. (a)). Ha was held to answer on all six 

counts and the additional allegations. After Ha’s preliminary 

hearing, the People amended the information to add an allegation 

to the attempted murder charge that Ha personally used a 

firearm under section 12022.5, subdivision (a).

In July 2019, Ha pleaded no contest to all counts. He also 

admitted he personally used a firearm in violation of section 

12022.5, subdivision (a), as to the attempted murder and the two 

assault counts. All counsel stipulated that the preliminary 

hearing transcript, police report, and arrest report provided a 

factual basis for Ha’s plea. As pertinent here, on the attempted 

murder count, the trial court sentenced Ha to 10 years in prison, 

consisting of the middle term of seven years plus a consecutive 

three years (the low term) for the section 12022.5, subdivision (a),

firearm enhancement. 

2. Ha’s Section 1172.6 Petition Proceedings

On September 30, 2022, Ha filed a section 1172.6 petition 

for resentencing on his conviction for attempted murder. The 

People opposed on the ground that Ha “was not convicted under 

the felony-murder rule or under the natural and probable 

consequences doctrine.” The court appointed counsel for Ha and 

set a hearing to determine whether Ha had made a prima facie 

showing that he was eligible for relief. 
6

At the hearing on Ha’s petition, the court noted it had 

reviewed the parties’ briefing, the preliminary hearing transcript, 

and the pre-plea report. Based on those documents, the court 

denied the petition. It reasoned that Ha “was convicted based 

solely upon his conduct as a shooter in the case. There was no 

second shooter. There was allegedly an accomplice but that 

person did not participate specifically in the shooting of the 

victim. . . . And victim [Yue] . . . survived the shooting but was 

able to identify [Ha] at the preliminary hearing as the sole 

perpetrator, the sole gunman, if you will, of the act committed 

upon him.” The court also noted that during Ha’s plea, Ha 

stipulated to the preliminary hearing transcript as providing the 

factual basis for his plea, and Ha admitted to using a firearm in 

the commission of the attempted murder, which the court found

amounted to an admission Ha was the “actual shooter.” The 

court found Ha was not entitled to relief as a matter of law. 

Ha timely appealed. 

DISCUSSION

1. Section 1172.6 Procedure

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

(SB 1437) substantially modified the law governing accomplice 

liability for murder. (People v. Strong (2022) 13 Cal.5th 698, 707-

708 (Strong); People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) 

It eliminated the natural and probable consequences doctrine as 

a basis for finding a defendant guilty of murder (People v. Gentile

(2020) 10 Cal.5th 830, 842-843, superseded by statute on other 

grounds as stated in People v. Glukhoy (2022) 77 Cal.App.5th

576, 584) and amended section 188 to provide: “Malice shall not 

be imputed to a person based solely on his or her participation in 
7

a crime” (§ 188, subd. (a)(3)).

7 It also enacted a procedure in 

section 1172.6 whereby individuals convicted of murder based on 

the natural and probable consequences doctrine, felony murder, 

or “other theory under which malice is imputed to a person based 

solely on that person’s participation in a crime” could petition the 

sentencing court to vacate the conviction and be resentenced on 

any remaining counts if they could not now be convicted of 

murder under the law as amended. (§ 1172.6, subd. (a).) 

Effective 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) 

clarified that SB 1437’s ameliorative changes and procedure for 

potential relief applied to individuals convicted of attempted 

murder under the natural and probable consequences doctrine. 

(People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn. 18.) 

Section 1172.6, subdivision (a), now reads, in relevant part, “A 

person convicted of . . . attempted murder under the natural and 

probable consequences doctrine . . . may file a petition with the 

court that sentenced the petitioner to have the petitioner’s . . . 

attempted murder . . . conviction vacated and to be resentenced 

on any remaining counts.” 

Under section 1172.6, the resentencing procedure begins 

with the filing of a petition containing a declaration that all 

requirements for eligibility are met (§ 1172.6, subd. (b)(1)(A)), 

including that “[t]he petitioner could not presently be convicted of

. . . attempted murder because of changes to Section 188 . . . made 

effective January 1, 2019.” (Strong, supra, 13 Cal.5th at p. 708.) 

The trial court must then determine if the petitioner has made a 

prima facie showing that he or she is entitled to relief. (§ 1172.6, 

7 SB 1437 also amended the felony-murder rule by adding

section 189, subdivision (e), but the felony-murder rule is not at 

issue in this appeal. 
8

subds. (a)-(c); accord, Strong, at p. 708.) “ ‘ “[T]he 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. If so, the court 

must issue an order to show cause.” ’ ” (Lewis, supra, 11 Cal.5th 

at p. 971; see People v. Curiel (2023) 15 Cal.5th 433, 460 (Curiel).) 

“[T]he ‘prima facie bar was intentionally and correctly set very 

low.’ ” (Lewis, at p. 972.)

The court may consider the record of conviction, which 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.” (Lewis, 

supra, 11 Cal.5th at p. 971; see Curiel, supra, 15 Cal.5th at

pp. 463-464.) “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.’ ” (Lewis, at p. 972.) 

“[T]he court may appropriately deny a 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; see Curiel, 

supra, 15 Cal.5th at p. 460.) “Consequently, ‘[i]f the petition and 

record in the case establish conclusively that the [petitioner] is 

ineligible for relief, the trial court may dismiss the petition.’ ” 

(Curiel, at p. 460, italics added.) Stated another way, if the 

record of conviction conclusively shows the petitioner was 

convicted under a theory of liability not affected by the

amendments to the law of murder and attempted murder, such 

as attempted murder under actual perpetrator or direct aiding 

and abetting theories, the trial court may dismiss the petition. 

(People v. Williams (2024) 103 Cal.App.5th 375, 397 (Williams), 
9

review granted Sept. 11, 2024, S286314 [evaluating whether 

record of conviction showed petitioner was convicted of 

“attempted murder under a valid theory, i.e., as a direct 

perpetrator”]; People v. Coley (2022) 77 Cal.App.5th 539, 548 

[section 1172.6 “applies by its terms only to attempted murders 

based on the natural and probable consequences doctrine,” and 

“[d]irect aiding and abetting remains a valid theory of attempted 

murder”].) We review de novo the trial court’s prima facie 

inquiry. (Williams, at p. 387.)

2. The Information Does Not Establish Ha’s 

Resentencing Ineligibility

The People contend Ha is ineligible for resentencing under 

section 1172.6 because “the totality of charges [in the 

information] specifically alleged that [Ha] was the direct 

perpetrator with no accomplice.” We disagree that the 

information establishes Ha’s ineligibility for resentencing as a 

matter of law.

The information charged Ha with attempted murder, 

alleging Ha “unlawfully, and with malice aforethought 

attempt[ed] to murder Fred Yue.” Attempted murder requires 

express malice aforethought and the commission of a direct but 

ineffectual act toward accomplishing the intended killing. 

(People v. Houston (2012) 54 Cal.4th 1186, 1217.) But under the 

former law, in an offense involving more than a single 

perpetrator, it was enough for the defendant to have intended to 

aid and abet the actual perpetrator in the commission of a target 

offense, such as assault, so long as the actual perpetrator 

intended to kill, and the attempted murder was the natural and 

probable consequence of the assault. (See People v. Montes (2021) 

71 Cal.App.5th 1001, 1007 [“When appellant was found guilty of 
10

attempted murder under a natural and probable consequences 

theory of liability, the ‘intent to kill’ was imputed onto appellant 

from the actual killer or perpetrator.”].) Because the People 

generically charged Ha with attempted murder under thenexisting law, the complaint allowed the prosecution to proceed on 

a theory of attempted murder under the natural and probable 

consequences doctrine. (See § 1172.6, subd. (a)(1); People v. 

Estrada (2024) 101 Cal.App.5th 328, 337-338 (Estrada); People v. 

Davenport (2021) 71 Cal.App.5th 476, 484 (Davenport).) An 

accusatory pleading need not specify the theory of attempted 

murder on which the prosecution will rely at trial. (Estrada, at 

pp. 337-338.) Specifically, attempted murder under the natural 

and probable consequences doctrine need not be separately 

pleaded. (Ibid.) Thus, the generic charge of attempted murder 

does not make Ha ineligible for relief. 

The People contend, however, that “by charging the 

personal firearm-discharge and great bodily injury enhancements 

in the information, the prosecutor elected a theory of attempted 

murder requiring proof that appellant was a direct perpetrator.” 

Indeed, along with great bodily injury enhancements, the 

information alleged several firearm enhancements (§§ 12022.5, 

subd. (a), 12022.7, subd. (a), and 12022.53, subds. (b)-(d)), which 

the People correctly note require “personal” use and/or discharge 

of a firearm by the charged defendant and do not permit vicarious 

liability for a coparticipant’s use or discharge of a weapon. (Cf.

People v. Balbuena (1992) 11 Cal.App.4th 1136, 1139, 

disapproved on another ground in People v. Bland (1995) 

10 Cal.4th 991, 1001, fn. 4 [“personally armed with a firearm” 

under § 12022, subd. (c) “distinguishes personal from vicarious 

liability, requiring that the defendant himself be armed”].)
11

However, “the People’s initial allegations were unproven and 

unadmitted” and thus “do not conclusively establish” Ha 

committed “every element of the offense of attempted murder 

under a valid theory.” (Williams, supra, 103 Cal.App.5th at 

p. 388.) 

The People also contend that because the information “did 

not charge a codefendant or suggest that anyone other than [Ha] 

was involved in . . . the attempted murder,” the information 

specifically charged Ha with attempted murder as the direct 

perpetrator. We are not persuaded. “[A] charging decision does 

not establish any facts as a matter of law. [Citation.] Moreover, 

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. Even further, the information did not foreclose 

the prosecution from presenting imputed malice before a jury 

regardless of whether it charged others.” (Estrada, supra, 

101 Cal.App.5th at p. 339.) Therefore, nothing in the information 

establishes Ha’s ineligibility as a matter of law.

3. Ha’s Plea Does Not Establish Ha’s Resentencing 

Ineligibility 

For the same reasons discussed, the People contend that

Ha’s no contest plea and admission to the firearm enhancement

foreclose resentencing eligibility as a matter of law. We again 

disagree. Ha pleaded no contest to attempted murder and 

admitted to personally using a firearm in connection with the 

attempted murder count, but he did not plead to any particular

type of malice. Further, Ha did not admit to any specific theory 

of attempted murder. Instead, Ha pleaded to the generic charge 

of attempted murder. Thus, the People could have proceeded 
12

under any theory of liability, including a natural and probable 

consequences theory. (See Estrada, supra, 101 Cal.App.5th at 

p. 339 [in pleading to attempted murder charge, Estrada did not 

plead to any particular type of malice or admit to any specific 

theory of attempted murder]; People v. Flores (2022) 

76 Cal.App.5th 974, 987 (Flores) [“In entering the plea, petitioner 

did not admit to or stipulate to any particular theory of 

murder.”]; but see People v. Mares (2024) 99 Cal.App.5th 1158, 

1167-1168, review granted May 1, 2024, S284232 [finding record 

of conviction contained facts refuting 1172.6 petition’s allegations 

where petitioner “pled guilty while the People were pursuing a 

murder conviction based only on a theory that he was the actual 

killer”].) Likewise, Ha’s admission that he personally used a 

firearm does not refute that he could have been convicted on a 

theory of imputed malice. (See People v. Wardell (2008)

162 Cal.App.4th 1484, 1494 [petitioner’s admission of § 12022.5, 

subd. (a) enhancement “does not encompass any specific intent.”]; 

Davenport, supra, 71 Cal.App.5th at p. 485 [petitioner’s 

admission to § 12022.5, subd. (a) enhancement “did not preclude 

the possibility of prosecution under a felony-murder theory”];

People v. Drayton (2020) 47 Cal.App.5th 965, 981, abrogated on 

other grounds in Lewis, supra, 11Cal.5th at pp. 962-963 

[admission of personal use of a firearm enhancement did not 

preclude possibility of prosecution under a felony-murder theory]; 

see also Estrada, at p. 338 [“As with pleading guilty to a criminal 

offense, a plea or admission of a sentencing enhancement is 

likewise deemed a judicial admission of only elemental facts 

necessary to the enhancement . . . [petitioner’s] admissions [to 

§ 12022, subd. (b) and 12022.7 enhancements] do not establish 
13

that he acted with the requisite malice aforethought.”].)8

Therefore, Ha’s plea and admission do not establish his 

resentencing ineligibility. 

4. The Preliminary Hearing Transcript Does Not 

Establish Ha’s Resentencing Ineligibility

Finally, the People contend the court properly denied Ha’s 

petition based on Ha’s preliminary hearing transcript because 

(1) relying on the transcript did not involve premature judicial 

factfinding, (2) Ha stipulated to the preliminary transcript as 

providing a factual basis for his plea, and (3) Ha failed to identify 

a “factual scenario under which he was not the actual shooter.”

None of the People’s arguments persuades us. 

A. Division Amongst Courts of Appeal Regarding 

Consideration of Preliminary Hearing 

Transcript

Courts of Appeal are divided on whether a trial court can 

consider a preliminary hearing transcript at the section 1172.6 

prima facie stage. On the one hand, our colleagues in Division 

Three of this district held that trial courts may rely on the 

preliminary hearing transcript if the evidence contained within is 

8 The People rely on the holding of People v. Garrison (2021) 

73 Cal.App.5th 735, 743, that “[b]y admitting that he personally 

used a weapon, [petitioner] necessarily admitted that he was the 

actual killer simply because there was no evidence either at the 

preliminary hearing or at the section 1170.95, subdivision (d)(3) 

hearing supporting any other scenario.” However, as noted by 

Ha, Garrison “involve[d] a section 1170.95, subdivision (d)(3) 

hearing, not a prima facie inquiry” under subdivision (c).

(Garrison, at pp. 747-748.) Thus, Garrison does not aid the 

People.
14

“uncontroverted.” (People v. Patton (2023) 89 Cal.App.5th 649, 

658, review granted June 28, 2023, S279670 (Patton).) Since 

Patton, two courts have reached a similar result. (See People v. 

Mares, supra, 99 Cal.App.5th at p. 1167 [finding it proper to rely 

on preliminary hearing transcript at prima facie stage for 

purpose of determining the People proceeded only on an actual 

killer theory]; People v. Pickett (2023) 93 Cal.App.5th 982, 990, 

review granted Oct. 11, 2023, S281643 [holding trial court can 

rely on “uncontradicted evidence from the preliminary hearing 

transcript” to determine prima facie eligibility even if defendant 

has not stipulated to transcript as a factual basis for a plea]; see 

also People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166-1167

[finding the transcripts from the preliminary hearing, stipulated 

as providing a factual basis, demonstrated petitioner was 

convicted under a valid theory of murder].) 

On the other hand, in Davenport, supra, 71 Cal.App.5th 

476, the First District ruled the trial court engaged in 

“ ‘impermissible factfinding’ ” at the prima facie stage by relying 

on facts taken from the preliminary hearing transcript that were 

not stipulated to. (Id. at p. 482; accord Estrada, supra, 

101 Cal.App.5th at p. 339 [“To the extent the court relied on the 

preliminary hearing transcript, such reliance here was improper 

because it required the court to engage in impermissible fact 

finding”].) Davenport further found “nothing in the evidence 

presented at the preliminary hearing conclusively refutes 

[petitioner’s] allegation that his conviction rests on now 

prohibited vicarious liability theories at trial.” (Davenport, at 

p. 484.) And our colleagues in the Fifth District recently held a 

preliminary hearing transcript could not be relied on to establish 

ineligibility for relief, even if the petitioner stipulated that the 
15

transcript provided the factual basis for his plea. (Williams, 

supra, 103 Cal.App.5th at pp. 397-398; see Flores, supra,

76 Cal.App.5th at pp. 991-992; cf. Rivera, supra, 62 Cal.App.5th 

at p. 238 [petitioner’s stipulation to a grand jury transcript as the 

factual basis for his plea did not constitute an admission that he 

committed murder with malice].) 

B. Ha’s Preliminary Hearing Transcript Does Not 

Conclusively Establish Ha Was Convicted 

Under a Valid Theory

As noted, the question whether a trial court can rely on the 

preliminary hearing transcript at the prima facie stage is before 

the California Supreme Court in Patton. Until the high court 

rules, we will follow the reasoning of Flores, Rivera, Estrada, and 

Williams. 

The facts and procedural history in Williams are on allfours with this case, except the testimony at the preliminary 

hearing in Williams was even more compelling in suggesting the 

petitioner was the sole, actual shooter. In Williams, the 

petitioner pleaded no contest to attempted murder and stipulated 

that the preliminary hearing transcript provided a factual basis 

for his plea. (Williams, supra, 103 Cal.App.5th at pp. 383-384.) 

At the preliminary hearing, the victim testified that the 

petitioner, acting alone, shot him in the face. (Id. at p. 383.) 

Williams decided that while the evidence presented at the 

preliminary hearing provided probable cause to believe the 

petitioner had committed attempted murder as the actual 

perpetrator of that offense, it did not “conclusively” establish that 

the petitioner committed the offense in that manner. (Id. at 

p. 397.)
16

The court explained the primary purpose of a preliminary 

hearing is to establish whether there is probable cause to believe 

that the defendant is guilty. (Williams, supra, 103 Cal.App.5th 

at p. 397.) “ ‘Probable cause “signifies a level of proof below that 

of proof beyond a reasonable doubt, or even proof by a 

preponderance of the evidence.” ’ ” (Ibid.) “At the preliminary 

hearing, the court may weigh the evidence and assess witness 

credibility, but it may not reject the prosecution’s evidence 

‘unless the evidence is “ ‘inherently implausible, the witnesses 

[have been] conclusively impeached, or the demeanor of the 

witnesses [is] so poor that no reasonable person would find them 

credible.’ ” ’ [Citation.] Thus, the preliminary hearing generally 

offers the defense little incentive to present contrary evidence.” 

(Ibid.) Moreover, the preliminary hearing evidence does not limit 

the prosecution’s trial strategy—the prosecution can proffer 

additional proof when the case proceeds to trial. (Id. at p. 398.) 

Thus, “the preliminary hearing transcript does not conclusively

establish a defendant’s guilt, let alone any particular theory of 

guilt. At most, the transcript and the court’s holding order 

establish there is probable cause to believe a defendant 

committed the charged offense under at least one of the theories 

presented by the prosecution.” (Ibid., italics added.) 

This conclusion is true, as Williams explained, even if 

defense counsel stipulated to the preliminary hearing transcript 

as providing a factual basis for the plea. (Williams, supra,

103 Cal.App.5th at p. 398.) “It is well settled that a stipulation to 

a factual basis for a plea is not ‘a binding admission for all 

purposes.’ [Citation.] Moreover, ‘[a] defendant is not required to 

personally admit the truth of the factual basis of the plea.’

[Citation.] ‘Courts have consistently differentiated between an 
17

admission that a document or recitation contains a factual basis 

for a plea and an admission that statements in that document or 

recitation are true.’ ” (Id. at pp. 398-399; see Flores, supra, 

76 Cal.App.5th at p. 991; Rivera, supra, 62 Cal.App.5th at 

p. 235.) Therefore, Williams held a stipulation to a factual basis 

does not conclusively establish the nature of the conduct 

underlying a plea. (Id. at p. 399.) 

As in Williams, Ha stipulated that the preliminary hearing 

transcript provided a factual basis for his plea. The evidence at 

Ha’s preliminary hearing provided probable cause to believe Ha 

shot Yue. Even if the Supreme Court decides courts may 

consider the preliminary hearing transcript at the prima facie 

stage in some circumstances, however, the evidence at Ha’s

preliminary hearing would not conclusively establish the nature 

of Ha’s conduct underlying his plea. (See Williams, supra,

103 Cal.App.5th at pp. 397-398.) The preliminary hearing 

transcript demonstrates Ha was part of a chaotic bar fight with 

multiple participants, distinguishing his case from those where it 

would defy all logic to deduce there could have been other 

participants and that the petitioner could have been convicted 

under a now-invalid theory of attempted murder. (See, e.g., 

Mares, supra, 99 Cal.App.5th at p. 1167 [testimony at 

preliminary hearing established petitioner admitted to stabbing 

victim and acting alone]; People v. Pickett, supra, 93 Cal.App.5th 

at pp. 986, 990 [evidence from preliminary hearing showed 

petitioner was the sole person to approach the victim with a gun 

and fire shots]; Patton, supra, 89 Cal.App.5th at pp. 652-653, 657

[surveillance video played at preliminary hearing showed 

petitioner acted “as the sole and actual perpetrator” in shooting 

victim].) 
18

We also decline the People’s suggestion that at this prima 

facie stage Ha bears the additional burden of presenting evidence 

that “(a) there was some other person who was the actual killer 

and (b) [Ha] acted in concert with this person in some way that 

rendered [Ha] guilty of [attempted] murder under a nowabrogated theory of accomplice liability.” (Mares, supra, 

99 Cal.App.5th at p. 1167 [requiring such a showing by petitioner 

to rebut showing from preliminary hearing transcript that People 

pursued an actual killer theory only].) Rather, we agree with 

Williams that a petitioner is not required to submit more than a 

facially sufficient petition to rebut uncontroverted facts presented 

at a preliminary hearing. (Williams, supra, 103 Cal.App.5th at 

p. 404.) “Nothing in section 1172.6 permits, let alone requires, a 

petitioner to submit new or additional evidence at the prima facie 

stage.” (Williams, at p. 405.) Requiring Ha to present some 

additional evidence or theory, as the People argue here, “is 

contrary to Curiel, which states that a petitioner’s bare 

allegations, phrased in the language of the statute, are sufficient 

to ‘put[ ] at issue all elements of the offense under a valid 

theory.’ ” (Williams, at p. 405.) Given these circumstances, the 

trial court erred in summarily denying Ha’s petition without an 

evidentiary hearing.

DISPOSITION

The order denying Ha’s petition for resentencing is 

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

/ / /

/ / /
19

to show cause and to conduct an evidentiary hearing in 

accordance with section 1172.6, subdivision (d).

STONE, J.

We concur:

SEGAL, Acting P. J.

FEUER, J.