Filed 4/5/23 P. v. Michel CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL ANTHONY MICHEL,

Defendant and Appellant.

 D079571

 (Super. Ct. No. 16CR031964)

APPEAL from a judgment of the Superior Court of San Bernadino 

County, Ingrid Adamson Uhler, Judge. Affirmed.

Sharon G. Wrubel, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters and Susan Sullivan 

Pithey, Assistant Attorneys General, Idan Ivri and Wyatt E. Bloomfield, 

Deputy Attorneys General, for Plaintiff and Respondent. 

Daniel Anthony Michel is currently incarcerated following his 

conviction for second degree murder. He appeals the trial court’s order 
2

denying his petition for resentencing under Penal Code,1 section 1172.6. 

Michel contends: (1) the trial court erroneously concluded that he was guilty

of directly aiding and abetting a gang murder; and (2) his case is not final; 

therefore, Assembly Bill No. 333 applies and his gang enhancement under 

section 186.22, subdivision (b) and the vicarious firearm enhancements under 

section 12022.53, subdivisions (d) and (e) must be vacated because the 

offenses admitted into evidence to prove a pattern of criminal gang activity

do not meet the requirements of Assembly Bill No. 333. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We take the facts from this court’s unpublished opinion, People v. 

Michel, D075390 (Jun. 5, 2019), in which we affirmed the judgment but 

remanded for the court to exercise its discretion to resentence Michel in light 

of certain statutory changes. 

In 2017, a jury convicted Michel of second degree murder of Albert 

Pena (§ 187, subd. (a); count 1), and participating in a criminal street gang 

(§ 186.22, subd. (a); count 2). The jury also found true certain firearm 

enhancement allegations under section 12022.53, subdivisions (d) and (e),

and an allegation that the murder was committed for the benefit of a criminal 

street gang (§ 186.22, subd. (b)(1)(C)). The court sentenced Michel to prison 

for 40 years to life, which includes 25 years to life for a firearm enhancement 

under section 12022.53, subdivisions (d) and (e).

Michel is a member of the Another Latin Crew (ALC) criminal street 

gang, which is led by Adrianna C. A gang expert described Adrianna as 

1 Undesignated statutory references are to the Penal Code. Effective 

June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 

without substantive change. (Stats. 2022, ch. 58, § 10.) In this opinion we 

refer to section 1172.6, though the statute went by its former designation at 

the time of the proceedings. 
3

“brazen” and violent, and testified that she is “an absolute terror on the city 

of Fontana and society due to her in-depth involvement in this gang.” 

Adrianna’s home serves as ALC headquarters. 

Julio was the father of Adrianna’s sister’s child. Adrianna believed 

that Albert, a member of the rival Eastside Fontana gang, was the getaway 

car driver in Julio’s killing and she ordered that he be killed. In June 2016,

Adrianna herself unsuccessfully attempted to shoot Albert.

Ana M., who testified under a grant of immunity, is the mother of 

Michel’s child. On July 5, 2016, Michel was a passenger in Ana’s parked car 

on Reed Street when Albert drove by alone in his car. Michel told Ana to 

follow Albert. When alongside Albert’s car, Michel challenged him to fight. 

Albert told Michel to follow him; however, when Albert drove into Eastside 

territory, Ana and Michel returned to Reed Street.

After Ana parked and exited her car, Albert also returned to Reed 

Street with a passenger, Robert C., an Eastside member. Robert reached into 

his waistband, indicating he had a gun. Michel told Ana that Robert was 

armed. Albert told Michel to follow him to a public park (the Park) to fight. 

Both ALC and Eastside claim the Park as their exclusive territory.

Ana and Michel drove to the northeast side of the Park, where they saw 

Albert and Robert standing outside Albert’s car, apparently ready to fight. 

Believing that Robert was armed, Michel told Ana to drive to Adrianna’s 

house to get some ALC members with guns. There, Adrianna directed three 

gang members—Brandon G., Miguel G. and Javier M.—to get in Ana’s car.

Brandon had a .45-caliber semiautomatic handgun, along with gloves 

and a bandana to cover the gun. Brandon told Michel they would have to 

shoot before Robert and Albert could fire first. Ana drove Brandon, Miguel, 

and Javier to the Park’s west side, about 500 yards from where Albert and 
4

Robert were located. Before exiting Ana’s car, Brandon chambered a round 

in the gun.

Ana and Michel drove to the Park’s east side, where Albert and Robert 

were standing. Meanwhile, Brandon, Miguel and Javier were walking “like 

they were on a mission” towards the east side of the Park. About a minute 

later, Brandon, Miguel and Javier ran after Albert and Robert, who tried to 

run away. They were all running at full speed. Albert and Robert had no 

weapon in their hands. Brandon shot Albert in the buttocks and in the arm. 

As Albert lay bleeding and begging for his life, Miguel kicked him in the face. 

One shot damaged Albert’s femoral artery, killing him. 

Ana and Michel drove Brandon to Adrianna’s house. Michel went to 

Miguel’s house. There, Michel texted Ana, “The best knowing you got me like 

I got you” and “I swear you’re the best.”

Ana went to her best friend’s (J.M.’s) house and told her what had 

happened. J.M. texted her boyfriend, “Crazy shit happened last night and 

her baby daddy and his crew killed someone and Ana was the getaway car.”

A gang expert testified that because ALC and Eastside were in a 

heated rivalry, by fighting in the Park, a location both gangs claimed as their 

territory, it was reasonably foreseeable that a challenge to a fist fight could 

escalate to a shooting. He also testified that knowing one gang might have a 

gun, it would be “absolutely insane” for a rival gang member to show up 

without a firearm.

In Michel’s first trial, the jury convicted him on count 2 (participating 

in a criminal street gang). But the jury hung on count 1 (murder), and 

therefore the court declared a mistrial on that count.

In the second trial, the court instructed the jury with CALCRIM No. 

520 defining malice aforethought murder and with CALCRIM No. 521
5

regarding first degree murder. This latter instruction also stated that 

“second degree murder based on express or implied malice and/or the natural 

and probable consequence theories under both aiding and abetting and 

conspiracy are explained in CALCRIM No. 520 . . . and CALCRIM [Nos.] 403 

and 417.”

The court also instructed the jury with CALCRIM No. 400, explaining 

that a person may be guilty of a crime as a perpetrator or instead as an aider 

and abettor. This was followed by CALCRIM No. 401 on direct aiding and 

abetting.

Next, the court instructed the jury with CALCRIM No. 403 on second 

degree murder under the natural and probable consequences theory.

The court instructed the jury with CALCRIM No. 417 on conspiracy

and the natural and probable consequences doctrine, which was consistent 

with CALCRIM No. 403 by stating that the jury could convict Michel of 

second degree murder if, among other required elements, second degree 

murder was a natural and probable consequence of the crime that he 

conspired to commit. 

The court instructed the jury with CALCRIM No. 570 on voluntary 

manslaughter under a heat-of-passion theory.

In the second trial, the jury was unable to reach a verdict on first 

degree murder and asked for additional closing arguments. The court asked 

the jury to specify what it wanted each attorney to address. The jury stated 

that the prosecutor should address “[w]hat specific evidence shows [Michel’s] 

decision to participate in the premeditation to commit murder” because “[a]ll 

of the testimony we have heard indicates [Michel] only wanted to fight. What 

actions indicate he was making a decision to kill?”
6

After additional closing arguments, the jury remained deadlocked on 

first degree murder. The People requested the court dismiss the first degree 

murder charge under section 1385, and have the jury continue deliberating 

on the remaining counts (second degree murder and voluntary manslaughter 

as lesser included offenses). The court granted that motion: “I think, 

potentially, [the jury is] having an issue emotionally, which I have obviously 

indicated they have to set that aside. But I think, emotionally, there’s an

issue because [Michel] is not the actual shooter . . . . He is young. There is 

an indication he never . . . ‘got out of the car.’ There’s also an indication that 

the jurors are considering the fact that the getaway driver, his girlfriend, was 

not prosecuted and [instead] granted immunity.” 

The court informed the jury that “[f]irst degree murder no longer needs 

to be decided in this case” and “to continue your deliberations to determine 

whether or not the defendant is guilty of second degree murder, voluntary 

manslaughter, or not guilty.” Thereafter, the jury found Michel guilty of 

second degree murder and found true the firearm and gang allegations.

Resentencing Petition

In 2019, Michel petitioned for resentencing under section 1172.6. The 

court set the matter for an evidentiary hearing, at which the parties 

presented no new evidence. Thereafter, it denied Michel’s petition, finding 

the evidence proved beyond a reasonable doubt he was guilty of murder as a 

direct aider and abettor under current law: “For the record, the court has 

read and considered the defendant’s petition for re-sentencing

. . . , the response to the defendant’s petition . . . , and I’m also taking judicial 

notice of the Court of Appeal’s opinion, the Information, the jury instructions, 

partial transcript of the first and second trial, the preliminary hearing 

transcript, and the minute orders, and abstract of judgment . . .
7

“Finally, I am relying on my independent recollection of the testimony 

after being the trial court for two separate trials in this matter. Based upon 

fully examining all this information, I am denying the petition for 

resentencing . . . because the court is convinced beyond a reasonable doubt, 

after independently weighing the evidence that the defendant was [a] direct 

aider and abettor to the murder of Albert Pena and therefore not entitled to

relief.

“Mr. Michel was an admitted member of the ALC gang, was the person 

who[ ] challenged Albert Pena—a rival gang member of the Eastside Fontana 

gang—to a fight at a park that both ALC and Eastside Fontana were fighting 

over for power and control. After seeing Albert Pena waiting, at the park, 

Michel told Ana, the [ ] mother of his child, to driven [sic] them to the ‘ranch,’

and a known ALC gang hang out to get some ALC member with guns.

“So [Michel] didn’t go over to the ranch to get people. He actually went 

to the ranch to get known ALC gang members, one being armed. At the 

ranch Michel [got] out of the car, briefly spoke to people at the ranch. Now, 

my memory is hazy who he actually spoke to. I thought I remember the 

testimony saying he spoke to Adrianna. But I just don’t have specific 

information as to that.

“Regardless, he spoke to people at the ranch. By his own admission 

[Michel] knew Adrianna was the shot caller and wanted Albert Pena to be 

killed in retaliation for a role—what they thought was his role as the getaway 

driver in the killing of Julio, Adrianna’s sister’s baby’s father, and [Adrianna]

even attempted to do so herself weeks before. 

“Michel as the passenger and Ana as the driver then take Brandon—an 

ALC gang member—armed with a gun, along with gloves and a bandana to 
8

cover the gun and two other ALC gang members, Miguel and Javier, back to 

the park to what becomes an ambush of Albert Pena.

“They drop off Brandon and the two other[s] on the opposite side of the 

park, drive toward Albert Pena, and engage verbally with Albert Pena, while 

both [Michel] and Ana remain in the car. Meanwhile, Brandon, Julio . . . and 

Javier are walking through the park as if they were ‘on a mission.’

“I believe the importance of [Michel] refusing to get out of the car 

indicates that he never had an intent to engage in a one-on-one fight with 

Albert Pena, but instead his intent was to aid and abet the murder of Albert 

Pena by keeping Albert Pena there while awaiting the arrival of the three 

gang members.

“During one portion of his interview with law enforcement—which he 

later contradicts—Michel’s statement was he admitted he knew Brandon was 

armed with a semi-automatic handgun and he even heard him chamber a 

round before Brandon got out of the car at the park. He also admitted that 

Brandon told Michel that he was going to ‘light them up before they light me 

up.’ He later stated in the interview he didn’t know anyone was armed and 

that Brandon and the others were there just to have his back if he was 

ambushed during his plan of a one-on-one fight with Albert Pena. But the 

evidence previously outlined proves th[e] contrary to be true.

“After the shooting, Michel and his girlfriend drive Brandon away from 

the park back to Adrianna’s house. That was only after he witnessed the 

shooting and the other two gang members were kicking Albert Pena as he lay 

dying. Michel stayed with Miguel while Ana stayed with her best friend J.M.

After Ana told J.M. what happened, J.M. texted her boyfriend, quote, ‘crazy 

shit happened last night and her baby daddy and his crew killed someone 

and Ana was the getaway driver.’ So even though the jury was instructed on 
9

a natural, probable consequence theory, among other theories of murder, we 

do not know which theory of liability the jury relied on in finding the 

petitioner guilty of second degree murder. That is not the issue in this 

hearing.

“The issue is whether the prosecution can show beyond a reasonable 

doubt that [Michel] is guilty of murder under the law effective after January 

1st, 2019. It is clear from these facts and the court is convinced beyond a 

reasonable doubt that [Michel] was a direct aider and abettor to the murder 

of Albert Pena and therefore he is ineligible for relief based upon the still 

valid theory of murder.”

DISCUSSION

I. Sufficiency of the Evidence

Michel contends insufficient evidence showed beyond a reasonable 

doubt that he shared the shooter’s “murderous mindset and directly aided 

and abetted a gang hit, rather than that [his] decision to fight Albert one-onone turned into a homicide he never intended.” He points to Ana’s testimony 

that he did not want to fight but rather she wanted him to fight, the fact he 

was only 19 years old and of small stature, and his statements to police that 

his plan was just to fight.

A. Applicable Law

“As relevant here, Senate Bill [No.] 1437 significantly limited the scope 

of the felony-murder rule to effectuate the Legislature’s declared intent ‘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.’ 

[Citations.] . . . [S]ection 189, as amended, now limits liability under a 

felony-murder theory principally to ‘actual killer[s]’ [citations] and those who, 
10

‘with the intent to kill,’ aid or abet ‘the actual killer in the commission of 

murder in the first degree’ (id., subd. (e)(2)). Defendants who were neither 

actual killers nor acted with the intent to kill can be held liable for murder 

only if they were ‘major participant[s] in the underlying felony and acted with 

reckless indifference to human life, as described in subdivision (d) of . . . 

[s]ection 190.2’—that is, the statute defining the felony-murder special 

circumstance.” (People v. Strong (2022) 13 Cal.5th 698, 708.)

“Senate Bill [No.] 1437 also created a special procedural mechanism for 

those convicted under the former law to seek retroactive relief under the law 

as amended.” (People v. Strong, supra, 13 Cal.5th at p. 708.) Unless the 

parties stipulate that the defendant is eligible for resentencing, the court 

must “hold an evidentiary hearing at which the prosecution bears the burden 

of proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder 

or attempted murder’ under state law as amended by Senate Bill [No.] 1437. 

(§ 1172.6, subd. (d)(3).)” (Strong, at p. 709.) At the hearing, the court may 

consider previously-admitted evidence, so long as it remains “admissible 

under current law, including witness testimony, stipulated evidence, and 

matters judicially noticed. The court may also consider the procedural 

history of the case recited in any prior appellate opinion.” (§ 1172.6, subd. 

(d)(3).) The parties may offer new or additional evidence to meet their 

respective burdens. “ ‘A finding that there is substantial evidence to support 

a conviction for murder, attempted murder, or manslaughter is insufficient to 

prove, beyond a reasonable doubt, that the petitioner is ineligible for

resentencing.’ [Citation.] ‘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.’ ” (Strong, at p. 709.) 
11

Second degree murder under a direct aiding and abetting theory 

“requires that ‘the aider and abettor . . . know and share the murderous 

intent of the actual perpetrator.’ [Citation.] For implied malice, the intent 

requirement is satisfied by proof that the actual perpetrator ‘ “knows that his 

conduct endangers the life of another and . . . acts with conscious disregard 

for life.” ’ ” (People v. Gentile (2020) 10 Cal.5th 830, 850.)

Section 188, subdivision (a)(3), “permits a second degree murder 

conviction only if the prosecution can prove the defendant acted with the 

accompanying mental state of mind of malice aforethought. The prosecution 

cannot ‘impute[ ] [malice] to a person based solely on his or her participation 

in a crime.’ ” (Gentile, supra, 10 Cal.5th at p. 846, quoting § 188, subd. 

(a)(3).) 

We review the trial court’s factual findings for substantial evidence. 

(People v. Clements (2022) 75 Cal.App.5th 276, 298.) “Our job on review is 

different from the trial judge’s job in deciding the petition. While the trial 

judge must review all the relevant evidence, evaluate and resolve 

contradictions, and make determinations as to credibility, all under the 

reasonable doubt standard, our job is to determine whether there is any 

substantial evidence, contradicted or uncontradicted, to support a rational 

fact finder’s findings beyond a reasonable doubt.” (Ibid.) We will not reverse 

unless there is no hypothesis upon which sufficient substantial evidence 

exists to support the trial court’s decision. (People v. Bolin (1998) 18 Cal.4th 

297, 331.) We must “presume in support of the judgment the existence of 

every fact the trier could reasonably deduce from the evidence.” (People v. 

Jones (1990) 51 Cal.3d 294, 314.) “The same standard applies when the 

conviction rests primarily on circumstantial evidence.” (People v. Kraft

(2000) 23 Cal.4th 978, 1053.) “An appellate court must accept logical 
12

inferences that the [trier of fact] might have drawn from the circumstantial 

evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.)

B. Analysis

Viewed in the light most favorable to the trial court’s ruling, the 

totality of the evidence is sufficient to support its finding that Michel is guilty 

of second degree murder under current law. Michel admitted that he knew 

Brandon was armed with a semi-automatic .45-caliber handgun—he heard 

him chamber a round at the Park. Michel told police that he knew Brandon 

and his companions had “been wanting to” shoot Albert because Adrianna 

had “been wanting” Albert killed in retaliation for Albert’s role in Julio’s 

killing. Ana also told police that she knew gunfire could erupt. The gang 

expert testified that given the heated rivalry between ALC and Eastside, it 

was reasonably foreseeable that a fist fight could escalate to a shooting. The 

overwhelming evidence was that Albert’s murder was the anticipated 

culmination of the escalating gang confrontations between ALC and Eastside. 

These facts all support the court’s finding that Michel knowingly aided and 

abetted an implied malice murder. (See People v. Glukhoy (2022) 77 

Cal.App.5th 576, 599, review granted July 27, 2022, S274792.) [“It is wellsettled that the presence at the scene of the crime and failure to prevent it, 

companionship and conduct before and after the offense, including flight, are 

relevant to determining whether a defendant aided and abetted in the 

commission of the crime”].)

Michel contends that despite the fact that two different juries failed to 

convict him of first degree murder, thus rejecting the conclusion that he 

“orchestrated the murder,” the court, relying on the same evidence and 

arguments by the prosecution, erroneously found that he was guilty of aiding 

and abetting the murder. He relies on People v. Cooper (2022) 77 Cal.App.5th 
13

393 (Cooper), claiming it “is instructive regarding a trial court’s denial of a 

petition under section [1172.6] based on reliance on factual findings that a 

jury rejected at trial.”

In Cooper, the jury acquitted the defendant of a charge of being a felon 

in possession of a firearm. (Cooper, supra, 77 Cal.App.5th at p. 397.) 

However, following his evidentiary hearing under section 1172.6, in which 

the parties did not submit any new or additional evidence, the court denied 

relief because it concluded the defendant had possessed and fired a gun, and 

therefore he was a major participant in the underlying kidnapping and acted 

with reckless indifference to human life under the amended section 189, 

subdivision (e)(3). (Cooper, at pp. 398, 416-417.) The court stated: “The 

acquittal establishes that the jury rejected [the prosecutor’s] arguments and 

was not convinced beyond a reasonable doubt that [the defendant] possessed 

a firearm, much less fired one. Yet the trial court, also applying the 

reasonable-doubt standard and considering the same evidence . . . found that 

[the defendant] did possess and fire a firearm, and explicitly relied on this 

finding to determine he was a major participant. Thus, . . . the [trial] court

effectively turned [the defendant’]s acquittal ‘into [its] opposite[ ].’ ” (Cooper, 

at p. 417.) The court remanded the matter for a new evidentiary hearing. 

(Id. at p. 418.)

Michel “recognizes that the two juries did not acquit [him] of first 

degree murder,” but argues: “[T]hese juries rejected the prosecution’s factual 

inferences and entire theory of the case, which the trial court accepted, 

nevertheless. Furthermore, on the prosecutor’s motion, the court dismissed 

the charge of first degree murder during the second trial, when the 

prosecutor realized he could again, not get [sic] a first degree murder verdict.”
14

We conclude Cooper, supra, 77 Cal.App.5th 393 is distinguishable on its 

facts. Here, the jury did not acquit Michel of a charge that the court later 

relied on to deny Michel relief on his resentencing petition. Rather, in the 

second trial, the court dismissed the first degree murder count and the jury 

convicted Michel of second degree murder. At resentencing, the court 

reviewed the entire record and independently concluded the evidence 

supported the second degree murder conviction under an aiding and abetting 

theory. Unlike in Cooper, the court’s conclusion was not foreclosed by any 

jury finding.

II. Assembly Bill No. 333

Michel contends that “because [his] case is not final, Assembly Bill No. 

333 applies and requires striking the gang enhancement and vicarious 

firearm enhancement findings due to the failure to prove the required 

pattern of criminal gang activity.” (Emphasis and some capitalization 

omitted.) The People respond: “Assembly Bill [No.] 333 does not apply 

retroactively to this case because appellant’s judgment was final before [the 

bill] became effective, and merely obtaining an order to show cause under 

section 1172.6 does not reopen the judgment.” (Emphasis and some 

capitalization omitted.) 

A. Applicable Law

In 2021, the Legislature passed Assembly Bill No. 333, which became 

effective on January 1, 2022. It amended section 186.22’s definitions of 

“pattern of criminal activity” and “criminal street gang,” and clarified what is 

required to show that an offense “benefit[s], promote[s], further[s], or 

assist[s]” a criminal street gang. (§ 186.22.) It also added section 1109, 

which addresses bifurcation of gang participation and enhancement charges. 

The California Supreme court has held that Assembly Bill No. 333 applies 
15

retroactively under In re Estrada (1965) 63 Cal.2d 740 to nonfinal judgments. 

(People v. Tran (2022) 13 Cal.5th 1169, 1206.) 

The California Supreme Court has stated: “Under our precedent and 

the high court’s, a judgment becomes final ‘ “where the judgment of 

conviction was rendered, the availability of appeal exhausted, and the time 

for petition for certiorari ha[s] elapsed.” ’ [Citations.] Once that process 

ends, the judgment may be challenged on collateral review. Merely filing a 

collateral attack does not make the judgment nonfinal.” (People v. Padilla

(2022) 13 Cal.5th 152, 162 (Padilla).) 

In Padilla, a juvenile defendant was convicted of murder in adult 

criminal court and sentenced to life without the possibility of parole. 

(Padilla, supra, 13 Cal.5th at p. 159.) Several years later, he successfully 

petitioned for a writ of habeas corpus in light of Miller v. Alabama (2012) 567 

U.S. 460, which held that mandatory life without parole sentences for 

juveniles violates the Eighth Amendment. (Padilla, at p. 159.) Two weeks 

after his sentence was vacated, the California electorate approved 

Proposition 57, which, among other things, requires that before a juvenile 

may be tried in adult court, the juvenile court must conduct a “ ‘transfer 

hearing.’ ” (Padilla, at p. 159; People v. Superior Court (Lara) (2018) 4 

Cal.5th 299, 303.)

The trial court subsequently resentenced the defendant to life without 

the possibility of parole. (Padilla, supra, 13 Cal.5th at p. 159.) On appeal 

from his resentencing, Padilla held the defendant was entitled to the 

retroactive application of Proposition 57, and thus, a transfer hearing. 

(Padilla, at p. 159.) The court observed it had already decided in People v. 

Superior Court (Lara), supra, 4 Cal.5th 299 that the Estrada presumption of 

retroactivity applies to the juvenile provisions of Proposition 57. (Padilla, at 
16

p. 160; In re Estrada, supra, 63 Cal.2d 740.) Thus, the issue before the court 

was whether his original judgment and sentence became “nonfinal when his 

sentence was vacated on habeas corpus.” (Padilla, at p. 158.) Padilla

decided this issue in the affirmative, reasoning that when the defendant’s 

sentence was vacated, the trial court regained the jurisdiction to impose a 

new sentence. (Id. at pp. 161-162.)

B. Analysis

This court affirmed the judgment on direct appeal in May 2019. The 

California Supreme Court denied Michel’s petition for review in September 

2019. The record does not indicate that he filed a petition for writ of 

certiorari in the United States Supreme Court. Accordingly, the judgment 

has been final since 2019. (See People v. Lizarraga (2020) 56 Cal.App.5th 

201, 206 [“a petition for writ of certiorari is timely filed within 90 days after 

entry of judgment of a state court of last resort”].) 

The mere fact Michel filed a petition for resentencing and the court 

held an evidentiary hearing under section 1172.6, subdivision (d)(3) did not 

reopen the judgment (Padilla, supra, 13 Cal.5th, at p. 162) because the 

judgment remains presumptively valid unless and until a court grants relief 

on his section 1172.6 petition, which the superior court declined to do.

People v. Guillory (2022) 82 Cal.App.5th 326 (Guillory) is instructive.

The defendant in that case filed a petition for resentencing under section 

1172.6, contending she could not have been convicted of murder under the 

law as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, 

ch. 1015). (Guillory, at p. 332.) The trial court found the defendant made a 

prima facie showing and issued an order to show cause, but at the 

subsequent evidentiary hearing ruled she was not entitled to relief. (Ibid.)

On appeal, the defendant contended she was entitled to the retroactive 
17

application of Proposition 57, and thus, a transfer hearing. (Guillory, at p. 

335.) The appellate court disagreed. Comparing the procedural posture of 

the defendant’s matter to Padilla, supra, 13 Cal.5th 152, the court reasoned:

“An order to show cause under section 1172.6 does not vacate the petitioner’s 

sentence but, like the habeas petition in Padilla, sets in motion proceedings 

to determine whether the petitioner is entitled to vacatur and resentencing.

(§ 1172.6, subd. (d)(1).) The original judgment remains final until that 

determination is made.” (Guillory, at pp. 335-336.) The same analysis 

applies here. Michel’s case was final, and as the court did not vacate his 

sentence, he is not eligible for relief under Assembly Bill No. 333.

DISPOSITION

The judgment is affirmed.

O’ROURKE, Acting P. J.

WE CONCUR:

IRION, J.

BUCHANAN, J.