Opinion
H050000
07-27-2023
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL JIMENEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 18CR004825
GREENWOOD, P. J.
Defendant Miguel Jimenez appeals from the denial of his petition for resentencing under former Penal Code section 1170.95. For the reasons below, we reverse the trial court's order and remand with directions to issue an order to show cause and conduct further proceedings under section 1172.6.
Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature amended section 1170.95 in several respects. (See Stats. 2021, ch. 551, §§ 1, 2; see also People v. Birdsall (2022) 77 Cal.App.5th 859, 865 (Birdsall).) The Legislature later renumbered section 1170.95 as 1172.6, with no change to the text of the statute. (Stats. 2022, ch. 58, § 10, eff. June 30, 2022.)
I. Facts And Procedural Background
A. Complaint and Preliminary Hearing
In 2018, the prosecution filed a complaint charging Jimenez and codefendant Mark Anthony Valenzuela with two counts of willful, deliberate, and premeditated attempted murder (§§ 664, 187, subd. (a); counts 1 and 2). The complaint also alleged that counts 1 and 2 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
The trial court held a joint preliminary hearing for Jimenez and Valenzuela. Salinas Police Officer Jeffrey Arensdorf testified that on the afternoon of April 7, 2018, he responded to a notification of possible gunfire at an address in Salinas. While driving to the scene, Arensdorf learned a 911 caller had described the vehicle involved in the shooting as a white Nissan.
At the scene, a woman told Arensdorf someone had fired shots at her husband and sister-in-law. Arensdorf observed several bullet holes in a car parked in the driveway, and a crime scene investigator found multiple spent shell casings consistent with semiautomatic gunfire.
Both victims were standing at the end of a driveway, approximately 10 to 15 feet away from the shooters, who fired from an adjacent grassy area separated from the driveway by a picket fence. Neither of the victims were struck by the gunfire.
The female victim told Arensdorf she and the male victim were standing in the driveway when two males approached and began to fire at them. She described the shooters as two young Hispanic males, 15 to 17 years old, with "shaved-down" haircuts and no facial hair. She told Arensdorf that after the two males fired the shots, they took off running away from the scene.
The male victim told Arensdorf he and the female victim were standing toward the back of the driveway when two males approached. The male victim said one of them removed a silver revolver from somewhere on his person and began to fire at the two victims. The male victim told the officer he had affiliated with the Sureno gang in his youth but had terminated that affiliation. He said the female victim was currently affiliated with the Sureno gang.
Officer Robert Hernandez testified that after receiving an alert about the suspect vehicle, he stopped a white Nissan Altima with dealer plates. The driver of the car was codefendant Valenzuela, and the passenger on the right rear side was Jimenez. The front passenger was a juvenile, identified in the record as A.C. Hernandez cited Valenzuela for Vehicle Code violations and released him and his passengers.
Detective Justin Heckman testified that in a follow-up investigation, he interviewed a witness who was parked on the street at the time of the shooting. The witness saw three people in a white Altima or Honda with no plates that was parked across the street from her car. Two people from the white car exited the vehicle and walked outside of the witness's view, whereupon the witness heard what she described as fireworks. A short time later she saw the two people return to the car, and one person got into the front passenger seat while the other got into the rear passenger area on the right side of the vehicle.
Two detectives testified about obtaining surveillance videos from locations near the shooting location. The videos showed two males approaching the scene of the shooting. The first suspect raised his arm and began shooting, and then the second suspect also began firing. The suspects then fled down the street.
A police officer who was stipulated to be an expert on gang-related crime in Monterey County testified that Jimenez, Valenzuela, and A.C. were active Norteno gang members. In response to a hypothetical question matching the facts of this case, the expert opined that the offense was committed for the benefit of the Norteno criminal street gang, and that the firearms used in the shooting were possessed for the benefit of the gang.
At the close of evidence, the prosecutor requested holding orders on additional charges and allegations: two counts of assault with a semi-automatic firearm (§ 245, subd. (b)) as to both defendants; firearm use during commission of the offense (§ 12022.5, subd. (a)) as to Jimenez on the two assault counts, as well as on counts 1 and 2; and use of a firearm during commission of a specified felony (§ 12022.53, subds. (b) & (c)) as to both defendants for counts 1 and 2. The attorneys for Jimenez and Valenzuela submitted on the evidence.
The court held Jimenez and Valenzuela to answer on all the offenses and enhancement allegations in the complaint, as well as the additional charges and enhancements requested by the prosecutor at the hearing.
B. Information, Plea, and Sentencing
After the preliminary hearing, the prosecution filed a first amended information (information) charging Jimenez and Valenzuela with two counts of willful, deliberate, and premeditated attempted murder (§§ 664, 187, subd. (a); counts 1 and 2); two counts of assault with a semi-automatic firearm (§ 245, subd. (b); counts 3 and 4); street terrorism (§ 186.22, subd. (a); count 5); and assault with a deadly weapon (§ 245, subd. (a)(1); count 6). The information alleged a gang enhancement (§ 186.22, subd. (b)(1)) as to counts 1, 2, 3, and 4. In addition, the information alleged personal use of a firearm (§ 12022.5, subd. (a)) as to Jimenez for counts 1, 2, 3, and 4. The information further alleged Jimenez had suffered a prior serious or violent juvenile adjudication (§ 1170.12, subd. (c)(1)).
In August 2019, Jimenez pleaded no contest to three counts: count 2-"second degree attempted murder" (§§ 187, subd. (a), 664); count 5-street terrorism (§ 186.22, subd. (a)); and count 6-assault with a deadly weapon (§ 245, subd. (a)(1)). As to count 2, he admitted the firearm use allegation (§ 12022.5, subd. (a)). He further admitted the prior strike allegation. In the plea waiver form, Jimenez agreed that the preliminary hearing transcript provided a factual basis for the conviction. At the change of plea hearing, Jimenez's counsel stipulated to a factual basis as set forth in the plea waiver form. Neither the plea waiver form nor the oral entry of plea specified a victim for any of the offenses.
In taking Jimenez's plea, the trial court described count 2 as "second degree attempted murder," but attempted murder is not statutorily divided into degrees. (People v. Smith (2005) 37 Cal.4th 733, 740.) Jimenez did not admit the allegation in count 2 of the amended information that the attempted murder was committed willfully, deliberately, and with premeditation.
The Attorney General asserts Jane Doe was the victim of the attempted murder and assault, but Jimenez never admitted that fact. The amended information identified Jane Doe as the victim in counts 2 and 5 but it also alleged the attempted murder in count 2 was premeditated, which Jimenez did not admit.
In accord with the plea agreement, the trial court imposed an aggregate sentence of 20 years four months. The sentence consisted of consecutive terms of seven years on count 2, eight months on count 5, and one year on count 6, with each of the terms doubled by the prior strike. The court also imposed a three-year term for the firearm use enhancement. The court granted the prosecution's motion to dismiss the remaining counts and strike the remaining allegations.
C. Proceedings on Petition for Resentencing
In January 2022, Jimenez petitioned for resentencing under former section 1170.95 by submitting a preprinted form (petition). By checking various boxes, Jimenez alleged he had been charged in an information that allowed the prosecution "to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine,"; that he pleaded guilty to attempted murder in lieu of going to trial; and that he could no longer be convicted of attempted murder because of changes made to sections 188 and 189. The trial court appointed counsel to represent Jimenez for his petition.
The prosecution filed an opposition to the petition arguing it should be denied because Jimenez failed to state a prima facie case for relief. Attached as an exhibit to the opposition was a copy of the transcript from the preliminary examination. The prosecution contended Jimenez had not met the requirements of a prima facie showing because the record of conviction, the preliminary hearing transcript, and Jimenez's admission to personal use of a firearm showed he could presently be convicted of attempted murder under revised sections 188 and 189. In particular, the prosecution argued evidence from the preliminary hearing showed Jimenez and another shooter opened fire at close range on the two victims, proving he was a shooter who acted with express malice. The prosecution also argued that Jimenez's admission to the section 12022.5, subdivision (a) enhancement was necessarily an admission to personally discharging the firearm because there was no evidence in the record supporting a "nondischarge" scenario.
The court held a hearing on the petition in April 2022. Counsel for Jimenez filed nothing and made no arguments at the hearing to support the petition. At the hearing, the court stated the outcome turned on whether it could review the preliminary hearing transcript as part of the record of conviction in determining whether Jimenez had made a prima facie showing. The court acknowledged a split of authority on this point but ruled it would consider the preliminary hearing transcript under People v. Nguyen (2020) 53 Cal.App.5th 1154 (Nguyen). Based on this record, the court found Jimenez was not entitled to relief because he was "an actual shooter in this incident" and "[h]e would be convicted as a principal or as an aider and abettor or as a major participant in the crime." The court also stated that Jimenez's admission to the personal use of a firearm supported a finding that he had not made a prima facie showing. The court made no express finding on whether Jimenez harbored an intent to kill.
The court stated that there was a "split of authority" as to whether it could rely on the preliminary hearing transcript to find that Jimenez had failed to state a prima facie case, and it expressly sought guidance from the appellate court on this issue. For reasons explained below, we do not reach the issue.
Jimenez filed a timely notice of appeal.
II. Discussion
Jimenez argues that the trial court erred in denying his petition at the prima facie stage because the record of his conviction did not conclusively refute the allegations in his petition. In support of this, Jimenez points to the preliminary hearing testimony of police officer Arensdorf, who testified that the male victim said "one of the males" who approached the victims had fired a weapon. The Attorney General counters that the court did not err in concluding that Jimenez failed to establish a prima facie case for resentencing because, without weighing the evidence or engaging in factfinding, the court could determine from the record before it that Jimenez was the either the shooter or that he directly aided and abetted the attempted murder. In particular, the Attorney General contends that that there was no material conflict in the evidence as to who shot at the victims, and alternatively, that Jimenez's admission to the firearm use enhancement and his no contest plea to assault with a deadly weapon meant that he admitted, at the least, to directly aiding and abetting the shooting.
We agree with Jimenez that his petition presented a prima facie showing of relief, and that the record did not establish as a matter of law that he is ineligible for vacatur of his conviction under section 1172.6. (People v. Lewis (2021) 11 Cal.5th 952, 971-972 (Lewis)).
A. Legal Principles
1. Effect of Senate Bill No. 1437
"Senate Bill [No.] 1437 'amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' (Stats. 2018, ch. 1015, § l, subd. (f) [(Senate Bill 1437)].)" (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, as amended by Senate Bill 1437, section 188, subdivision (a)(3) was added to require that "in order to be convicted of murder, a principal in a crime shall act with malice aforethought." (§ 188, subd. (a)(3).) Second, Senate Bill 1437 added section 189, subdivision (e), limiting liability for felony murder. (Stats. 2018, ch. 1015, § 3.)
Third, Senate Bill 1437 "created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended." (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) When the trial court receives a petition under section 1172.6 requesting vacatur of a murder, attempted murder, or manslaughter conviction and resentencing, and "containing the necessary declaration and other required information, the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief.' [Citations.] If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. [Citations.] If, instead, the defendant has made a prima facie showing of entitlement to relief, 'the court shall issue an order to show cause.'" (Ibid., citing Lewis, supra, 11 Cal.5th at pp. 970-972, § 1172.6, subd. (c).)
"We independently review a trial court's determination on whether a petitioner has made a prima facie showing." (People v. Harden (2022) 81 Cal.App.5th 45, 52.)
2. Application to Attempted Murder Through Senate Bill No. 775
In October 2021, the Governor signed Senate Bill No. 775 (Stats. 2021, ch. 551, § 2), effective January 1, 2022, which amended section 1172.6 to clarify that persons who were convicted of attempted murder under the natural and probable consequences theory "are permitted the same relief as those persons convicted of murder under the same theor[y]." (People v. Patton (2023) 89 Cal.App.5th 649, 656 (Patton).)
"[A]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623 (Lee); see also People v. Scott (1997) 15 Cal.4th 1188, 1213.) An intent to kill is shown if the assailant either desires the death of the victim or knows to a substantial certainty that death will occur as the result of the assailant's action. (People v. Smith (2005) 37 Cal.4th 733, 739.) "[I]ntent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases by inferred from the defendant's acts and the circumstances of the crime." (Id. at p. 741.)
Section 1172.6 "applies by its terms only to attempted murders based on the natural and probable consequences doctrine." (People v. Coley (2022) 77 Cal.App.5th 539, 548 (Coley).) When a defendant is "found guilty of attempted murder under a natural and probable consequences theory of liability, the 'intent to kill' [is] imputed onto [the defendant] from the actual killer or perpetrator." (People v. Montes (2021) 71 Cal.App.5th 1001, 1007.) "Because section 188, subdivision (a)(3), prohibits imputing malice based solely on participation in a crime, the natural and probable consequences doctrine cannot prove an accomplice committed attempted murder. Accordingly, the natural and probable consequences doctrine theory . . . is now invalid." (People v. Sanchez (2022) 75 Cal.App.5th 191, 196.)
Although a defendant can no longer be held liable for attempted murder based on the natural and probable consequences doctrine, under current law, a "sole and actual perpetrator of the attempted murder . . . is ineligible for resentencing as a matter of law." (Patton, supra, 89 Cal.App.5th at p. 657.)
Additionally, "[d]irect aiding and abetting remains a valid theory of attempted murder after the enactment of Senate Bill No. 775." (Coley, supra, 77 Cal.App.5th at p. 548.) "To be guilty of a crime as an aider and abettor, a person must 'aid[] the [direct] perpetrator by acts or encourage[] him [or her] by words or gestures.' [Citations.] In addition, . . . the person must give such aid or encouragement 'with knowledge of the criminal purpose of the [direct] perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of,' the crime in question. [Citations.] When the crime at issue requires a specific intent, in order to be guilty as an aider and abettor the person 'must share the specific intent of the [direct] perpetrator,' that is to say, the person must 'know[] the full extent of the [direct] perpetrator's criminal purpose and [must] give[] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrator's commission of the crime.' [Citation.] Thus, to be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator's intent to kill and with the purpose of facilitating the direct perpetrator's accomplishment of the intended killing-which means that the person guilty of attempted murder as an aider and abettor must intend to kill." (Lee, supra, 31 Cal.4th at pp. 623-624; see also People v. McCoy (2001) 25 Cal.4th 1111, 1118.)
B. Analysis
Jimenez contends the trial court erred by failing to issue an order to show cause because the facts as set forth in the preliminary examination do not conclusively refute the allegations in his petition. For the reasons below, we conclude this argument has merit.
The California Supreme Court has made clear that "the prima facie inquiry under [former section 1170.95,] subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings,' "the 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."' [Citation.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citation.] 'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner."' [Citation.]" (Lewis, supra, 11 Cal.5th at p. 971.) At this stage of the proceedings, the court "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.) "Only where the record of conviction contains facts conclusively refuting the allegations in the petition may the court make credibility determinations adverse to the petitioner." (People v. Flores (2022) 76 Cal.App.5th 974, 991 (Flores).)
We first consider whether Jimenez's pleas, admissions, and the facts necessarily implied by them would preclude relief. "A defendant's guilty plea or admission of a sentence enhancement allegation is deemed to constitute a judicial admission of every element of the offense charged and severely restricts the defendant's right to appeal from the ensuing judgment. [Citations.]" (People v. Bowie (1992) 11 Cal.App.4th 1263, 1266.) "Admissions of enhancements are subject to the same principles as guilty pleas.... It waives any right to raise questions about the evidence, including its sufficiency. [Citation.]" (People v. Lobaugh (1987) 188 Cal.App.3d 780, 785; see also § 1016(3).)
However, a "defendant is not required to personally admit the truth of the factual basis of the plea, which may be established by defense counsel's stipulation to a particular document, such as a police report or a preliminary hearing transcript." (People v. French (2008) 43 Cal.4th 36, 50-51; see People v. Thoma (2007) 150 Cal.App.4th 1096, 1104 [a general stipulation to a factual basis for a plea does not amount to an admission of particular facts].) Although the preliminary hearing transcript was offered as a factual basis for Jimenez's plea and admissions, Jimenez did not personally admit any specific facts beyond the bare admissions necessary to satisfy the required elements. (See Thoma, at p. 1104; People v. Rivera (2021) 62 Cal.App.5th 217, 235.)
Jimenez pleaded no contest to attempted murder, but the plea itself did not identify the theory of liability, and under the law at the time, Jimenez could have been guilty of attempted murder as a natural and probable consequence of aiding and abetting an assault. (People v. Montes (2021) 71 Cal.App.5th 1001, 1007-1008 [the natural and probable consequences doctrine imputes specific intent to kill in attempted murder convictions; the actions of the perpetrator are imputed to the accomplice].) Indeed, the prosecution below conceded the accusatory pleading allowed the prosecution to proceed under this theory, satisfying the requirements of section 1172.6, subdivision (a)(1). Jimenez did not admit to any other facts that would have precluded this theory. As a result, the entry of the no contest plea does not provide facts that conclusively refute the allegations in Jimenez's petition that his admission was to attempted murder based on a natural and probable consequences theory of liability.
Although Jimenez's no contest plea to attempted murder in count 2 does not itself render him ineligible for relief under section 1172.6, we must consider whether his admission to personally using a firearm under section 12022.5, subdivision (a) or his no contest plea to assault with a deadly weapon conclusively establish that he admitted harboring an intent to kill.
Section 12022.5, subdivision (a), punishes a defendant "who personally uses a firearm in the commission of a felony or attempted felony...." (§ 12022.5, subd. (a).) Under this section, "use" of a firearm "connotes something more than a bare potential for use," such as displaying the gun, brandishing the gun, or actually firing the gun. (People v. Arzate (2003) 114 Cal.App.4th 390, 399-400.) A firearm can be "used" under this section if it is merely displayed in a menacing manner but never fired. (See People v. Young (2005) 34 Cal.4th 1149, 1205.) Jimenez's admission to this allegation therefore did not constitute an admission he discharged the firearm or that he intended to kill any victim. (See People v. Jones (2003) 30 Cal.4th 1084, 1120 [a finding of personal use would not in itself prove defendant was the actual killer].)
The Attorney General asserts that at the very least, Jimenez's admission to the firearm allegation establishes he intended to intimidate the victim, thereby constituting an admission that he aided and abetting the shooting. (See People v. Granado (1996) 49 Cal.App.4th 317, 325 [when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim so as to successfully complete the underlying offense].) Even if we accept that assertion, it does not constitute an admission that he intended to kill; at most, it establishes Jimenez displayed the gun with the intent to aid and abet the assault. As a result, Jimenez's admission to the personal use of a firearm under section 12022.5, subdivision (a) does not conclusively establish that he is ineligible for relief under section 1172.6.
Jimenez also pleaded no contest to violating section 245, subdivision (a)(1), which prohibits "an assault upon the person of another with a deadly weapon or instrument other than a firearm...." (§ 245, subd. (a)(1).) "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) "[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams (2001) 26 Cal.4th 779, 790.) The no contest plea to assault with a deadly weapon therefore did not constitute an admission that Jimenez intended to kill.
The Attorney General argues that Jimenez's no contest plea to assault in count 6 supports the trial court's denial of the petition at the prima facie stage of the proceedings. Count 6 of the amended information alleged that Jimenez and Valenzuela committed an assault against the female victim. The Attorney General contends that because Valenzuela was the driver rather than the shooter, Jimenez's no contest plea to count 6 was an admission that Valenzuela knew that the others were going to shoot, and thus Jimenez and Valenzuela had the intent to commit the assault from the outset of the incident. Under the Attorney General's theory, this shared intent to commit assault with a deadly weapon in turn supports a determination that Jimenez intended to directly aid and abet the attempted murder. But Jimenez never admitted Valenzuela was the driver; he simply pleaded no contest to the assault charge without admitting other facts alleged in the amended information. Nor would such an admission establish Jimenez harbored an intent to kill as opposed to an intent to commit assault or aid and abet an assault.
The trial court based its ruling on the evidence presented at the preliminary hearing, going beyond the pleas and admissions. Based on this evidence, the court concluded Jimenez had failed to make a prima facie claim for relief because he "was an actual shooter in this incident," and "[h]e would be convicted as a principal or as an aider and abettor or as a major participant in the crime." Jimenez asserts that the trial court's finding that he was an actual shooter necessarily required that it weigh the conflicting evidence presented at the preliminary hearing to determine its credibility.
The trial court appeared to be referencing subdivision (e) of section 189, which sets forth elements Senate Bill 1437 added to felony murder. But neither the prosecution below nor the Attorney General here contends Jimenez's petition should be denied on the ground the record shows he committed felony murder. There is no felony murder theory of liability for the offense of attempted murder. (In re Lucero (2011) 200 Cal.App.4th 38, 51 [for the felony-murder rule to apply, there must be a killing].)
We agree with Jimenez that the trial court's finding here that Jimenez was "the actual shooter in this incident" rests on the type of factfinding prohibited at the prima facie stage by our court in Lewis. There was conflicting evidence presented at the preliminary hearing that required the trial court to determine the credibility of witnesses when denying the resentencing petition. Officer Arensdorf testified that the male victim of the shooting indicated that while two males approached him, one of the males removed a gun from somewhere on his person and shot at the persons on the driveway. But the officer also testified that the female victim, who was described as affiliated with the Sureno gang, reported that two males fired guns, and another officer testified that a surveillance video showed two persons shooting guns. The witnesses did not themselves testify and the video evidence is not in the record; rather, an officer testified to a description of the video's contents.
We acknowledge that there is disagreement in the Courts of Appeal as to the extent to which trial courts may rely on the preliminary hearing transcript to deny a petition at the prima facie stage. (Compare Nguyen, supra, 53 Cal.App.5th at pp. 11661168 [the absence of a mention of felony murder or natural and probable consequences in a preliminary hearing is sufficient as a matter of law to establish that defendant was not facing exposure under those theories] with People v. Rivera (2021) 62 Cal.App.5th 217, 236-237 [disagreeing with Nguyen, because the return of an information or indictment based only on certain theories does not reflect a determination that those are the only viable theories available].) However, our Supreme Court has clearly indicated that the trial court may not engage in factfinding at the prima facie phase. (Lewis, supra, 11 Cal.5th at p. 972.)
The prosecution urged the court to find that Jimenez and another suspect opened fire at close range, arguing that this established Jimenez shot at the victims, and because of the nature of the assault, acted with the requisite intent to kill. But this required the trial court to decide which witness to the shooting the court found credible regarding the number of persons who shot at the victim.
Second, even assuming the record conclusively proved Jimenez was a shooter, it did not conclusively prove he harbored an intent to kill or to aid and abet a killing. While the act of shooting at a person may support an inference of intent to kill based on the circumstances of the offense, it does not in and of itself conclusively establish the shooter intended to kill. A shooter may fire toward a person with the intent to intimidate them but not to strike them, or with the intent to strike them nonfatally-e.g., aiming for some part of the body that is not likely to cause a fatal injury. Here, the evidence was that the shooters were 10 to 15 feet away from the victims, standing in an adjacent yard on the other side of a fence. Neither person was struck or injured. Bullet holes were found in a car and structures nearby, but the record holds no evidence of the bullet trajectories that would conclusively establish Jimenez harbored an intent to kill-e.g., that the shots were fired in such close proximity or so directly at vulnerable portions of a victim's anatomy that they established an intent to inflict a fatal injury. Nor did the evidence establish which of those shots Jimenez may have fired, or which of the victims he may have fired upon.
We conclude that the trial court's reliance on conflicting evidence presented at the preliminary hearing to find that Jimenez actually shot at the victim necessarily required" 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Lewis, supra, 11 Cal.5th at p. 972.) Furthermore, the court made no findings regarding Jimenez's intent to kill, and the evidence did not conclusively establish such intent. Even assuming the evidence conclusively established Jimenez was one of the shooters, nothing in the record shows he fired directly at either victim. Consistent with his pleas and admissions under the law in effect at the time, Jimenez could have fired in the direction of the victims without intending to kill them, while pleading no contest to attempted murder under the theory that the other shooter committed attempted murder as a natural and probable consequence of the assault. None of the evidence presented at the preliminary hearing would conclusively disprove this scenario.
We need not and do not weigh in on the split between the Courts of Appeal "on the import of the preliminary hearing transcript in determining whether a petitioner has made a prima facie case for resentencing." (Flores, supra, 76 Cal.App.5th at p. 989.).
The Attorney General argues that Jimenez's pleas and admissions constitute an admission that he acted with implied malice. But implied malice cannot support a conviction for attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 327.)
Because Jimenez's petition alleged the facts necessary for relief under section 1172.6 (§ 1172.6, subds. (a)-(c)), and nothing in the record conclusively demonstrates that he is ineligible for relief as a matter of law, we conclude that Jimenez's petition made a prima facie showing of entitlement to relief. (See Lewis, supra, 11 Cal.5th at pp. 970-972; § 1172.6, subd. (c); see also Strong, supra, 13 Cal.5th at p. 720.)
III. Disposition
The trial court's April 21, 2022 order is reversed. The matter is remanded to the trial court with directions to issue an order to show cause and conduct further proceedings in accordance with Penal Code section 1172.6.
WE CONCUR: Danner, J., Bromberg, J.