# People v. Holguin CA5

> California Court of Appeal · November 24, 2025

URL: https://www.frixlaw.com/law-library/cases/11208090

## Case

- **Court:** California Court of Appeal
- **Decided:** November 24, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 11/24/25 P. v. Holguin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F087007
Plaintiff and Respondent,
(Super. Ct. No. MCR052047)
v.

FELIPE ROMAN HOLGUIN, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea,
Judge.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Julie A. Hokans, and Galen
N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant and defendant Felipe Roman Holguin (defendant) was charged with
committing the first degree murder of Demitrius Padilla (Pen. Code, §187, subd. (a))1
with a special circumstance and firearm enhancements. The charged offenses and
allegations carried the maximum possible sentence of life in prison without the possibility
of parole (LWOP) for first degree murder with the special circumstance, plus 25 years to
life for the section 12022.53, subdivision (d) firearm enhancement.
At the preliminary hearing, an eyewitness testified and identified defendant as the
person who fired multiple guns shots at Padilla. Another witness testified that on the
same night as the murder, defendant asked him to get rid of bullet casings and made
incriminating statements on later occasions. Both witnesses testified under grants of
immunity.
In 2016, both witnesses repeated their testimony at defendant’s jury trial; the
eyewitness again identified defendant as the gunman, and the second witness testified
about defendant’s incriminating conduct and statements. On the fourth day of the trial,
the eyewitness who identified defendant as the gunman was on the stand and had not
been cross-examined yet, and the prosecution was still presenting the case-in-chief. On
that day, however, defendant entered into a negotiated disposition and pleaded guilty to
first degree murder for a sentence of 25 years to life and agreed to waive his appellate
rights, in exchange for the dismissal of the special circumstance and the firearm
enhancements, thus avoiding both the LWOP sentence and a maximum additional term of
25 years to life. The parties stipulated to the preliminary hearing and the partial trial
transcripts as the factual basis for the plea, along with the prosecutor’s statement that
defendant shot and killed the victim.

1 All further statutory citations are to the Penal Code unless otherwise stated.

2.
Shortly after entering his guilty plea, defendant filed a motion to withdraw his
plea. The trial court conducted a hearing, denied the motion, and sentenced defendant to
25 years to life for first degree murder consistent with the negotiated disposition.
Defendant filed an appeal limited to his motion to withdraw his plea. This court found
the motion was properly denied and affirmed the judgment.
In 2022, defendant filed a motion for resentencing of his murder conviction
pursuant to section 1172.6, using a preprinted form and checking boxes to assert he was
charged and convicted under one of the now-invalid murder theories of imputed malice.
The People filed opposition, attached the plea transcript, and argued the petition failed to
state a prima facie case for relief because defendant stipulated to the factual basis when
he entered his plea, that he shot and killed the victim. Defendant’s appointed counsel
filed a reply and argued the trial court could not rely on this court’s nonpublished opinion
in the direct appeal or the preliminary hearing transcript to make the prima facie
determination, his petition stated a prima facie case since he pleaded guilty, and an
evidentiary hearing should be held.
In 2023, the trial court denied defendant’s petition for failing to state a prima facie
case. In doing so, the court did not rely on any aspect of defense counsel’s factual basis
stipulation at the plea hearing, and instead, reviewed the transcripts from the preliminary
hearing and partial trial, and held the record of conviction showed he was the actual killer
and ineligible for relief.
In this appeal from the trial court’s denial of defendant’s section 1172.6 petition,
the parties’ initial briefing addressed whether the court relied on the parties’ factual basis
stipulation at the plea hearing to find he was the actual killer, the court relied on the
preliminary hearing and partial trial transcripts to make the prima facie determination, or
if the court erroneously relied on those transcripts to make factual findings to deny the
petition and should have conducted an evidentiary hearing.

3.
At the time of the trial court’s hearing and the parties’ initial appellate briefing,
appellate courts were divided on whether a preliminary hearing transcript was part of the
record of conviction and could be relied on to make the prima facie determination, and
the issue was pending before the California Supreme Court.
While this appeal was pending, the California Supreme Court decided People v.
Patton (2025) 17 Cal.5th 549 (Patton), and held that in making the prima facie
determination as to whether a petitioner, who entered a plea instead of going to trial, was
convicted under a now-invalid imputed malice theory of homicide in a section 1172.6
petition, the trial court may “rely on unchallenged, relief-foreclosing facts within a
preliminary hearing transcript to refute conclusory, checkbox allegations” made in a form
section 1172.6 petition. (Patton, at p. 564.) Patton disapproved of appellate decisions
that “conditioned the use of preliminary hearing transcripts [to make the prima facie
determination] on whether a petitioner previously admitted the truth of testimony
contained therein or stipulated to the transcript as the factual basis of a plea.” (Id. at
p. 569, fn. 12.) Patton affirmed the trial court’s denial of the section 1172.6 petition in
that case but granted the defendant’s request to remand the matter for the opportunity to
file an amended petition consistent with the Supreme Court’s ruling. (Patton, at pp. 569–
570.)
After Patton was decided, this court ordered the parties herein to file supplemental
briefs on its impact to this case. The People assert the trial court properly considered the
preliminary hearing and partial trial transcripts to find defendant’s “check-box” form
petition failed to state a prima facie case for relief since that evidence established
defendant was the actual killer and ineligible for resentencing, and remand is not required
even after Patton.
Defendant acknowledges the holding in Patton but disagrees how it applies to the
preliminary hearing and partial trial evidence in this case. Defendant asserts the trial
court had to make credibility findings to believe the two witnesses since they testified

4.
under grants of immunity and gave conflicting prior statements. Defendant also raises
ineffective assistance arguments arising from both the plea hearing and the
section 1172.6 prima facie determination. In the alternative, defendant requests remand
in order to file an amended petition to plead additional facts, as permitted in Patton.
We find that in making the prima facie determination, the trial court properly
reviewed the preliminary hearing and partial trial transcripts as part of the record of
conviction, completely independent from the factual basis stipulation at the plea hearing,
to find defendant was the actual killer and ineligible for resentencing under section
1172.6. Defendant’s contrary claims, including his alleged “immunity” and ineffective
assistance arguments, are refuted by the record. As in Patton, however, we grant
defendant’s request to remand the matter for him to have the opportunity to file a
supplemental petition in the trial court.
PROCEDURAL BACKGROUND
On July 28, 2015, a felony complaint was filed that charged defendant with
count 1, first degree premeditated murder of Padilla (§ 187, subd. (a)), with the gang
special circumstance (§ 190.2, subd. (a)).
It was further alleged defendant personally and intentionally discharged a firearm
proximately causing great bodily injury and death (§ 12022.53, subd. (d)); he personally
and intentionally discharged a firearm (§ 12022.53, subd. (c)); and he personally used a
firearm (§ 12022.5, subd. (a)(1), 12022.53, subd. (b)).
On July 30, 2015, the court conducted the arraignment. Defendant refused to
appear in court. The court appointed the public defender, who entered a not guilty plea.
On August 4, 2015, the public defender advised the court about a conflict. The
court discharged the public defender and appointed Antonio Alvarez to represent
defendant.2 Thereafter, Mr. Alvarez represented defendant at the preliminary hearing,

2 At the time of trial, Mr. Alvarez was from the Richard Ciummo firm in Fresno.

5.
the partial jury trial, the plea hearing, defendant’s motion to withdraw his plea, and the
sentencing hearing.
PRELIMINARY HEARING EVIDENCE3
On October 2 and 6, 2015, the preliminary hearing was conducted. For purposes
of that hearing, the parties stipulated to certain gang evidence, and that Padilla died of a
gunshot injury.4
The prosecutor stated that Carmen Hernandez and Jose Ochoa were witnesses who
possibly had Fifth Amendment issues, and they received use immunity for their
preliminary hearing testimony.
I. Carmen Hernandez.
Carmen Hernandez testified defendant was the gunman who shot Padilla and
explained how she knew defendant and Padilla.
Hernandez worked for Eddie Herrera for two years, managed his bar, and sold
drugs for him. Hernandez had seen defendant at Herrera’s bar, and she knew defendant
and Herrera were friends and might have been relatives.
While she was working for Herrera, Hernandez and James Owens, her boyfriend,
lived in a house on Avenue 17 that Herrera was renting.
Hernandez had known Padilla for six years, and Padilla and his wife were
godparents to her child. Hernandez knew there had been a prior altercation between
Padilla and Herrera.

3 During the pendency of this appeal, we granted defendant’s unopposed request to
take judicial notice of the record and nonpublished opinion in People v. Holguin (June 5,
2018, F073524) (Holguin I), that affirmed the judgment on direct appeal.
Given the ruling in Patton, we separately review the evidence introduced at the
preliminary hearing and partial trial.
4 We need not review the prosecution’s gang evidence since the negotiated
disposition resulted in dismissal of the gang special circumstance.

6.
In April 2015, Herrera told Hernandez and Owens that they had to move out of the
Avenue 17 house immediately. After delivering this news, Hernandez and Herrera
argued about when they had to get out of the house and got some time to get out.
Hernandez told Padilla that they had to leave Herrera’s rental house, and Padilla invited
them to live at his Park Street residence.
Hernandez testified that after Herrera told them to get out of the Avenue 17 house,
but before she moved out, she knew that Padilla and “another acquaintance” broke into
Herrera’s house and stole his drug supply. After the burglary, Hernandez met Padilla in
the basement of his Park Street house, and they divided the drugs that he stole from
Herrera’s house. Hernandez denied that she told Padilla that Herrera kept his drug supply
at his house.
Hernandez testified that when she left the Avenue 17 house, she lived in the
basement of Padilla’s house on Park Street with Owens. Hernandez later parked a trailer
inside Padilla’s backyard fence, and she lived inside the trailer with Owens. At the time
of the murder, Hernandez and Owens had been living at the Park Street house for three
weeks.
A. Defendant confronts Padilla.
Hernandez testified that around 5:00 p.m. on May 25, 2015, Memorial Day, she
walked from Padilla’s house to Walgreen’s with Owens, Padilla, and “Susan.”5 After
they finished at Walgreen’s, they crossed the street to a gas station store. A car
approached them, and defendant jumped out. Defendant went up to Owens and Padilla,
lifted his shirt, and said he did not have a weapon. Defendant asked Owens and Padilla
whether they had robbed his friend, Herrera. Defendant said he was going back to speak
to Herrera. He shook hands with Owens and Padilla and walked away.

5 At the preliminary hearing, Hernandez did not identify “Susan.” At trial, however,
she testified Susan Flores was Padilla’s girlfriend, and she walked to the store with them.

7.
B. The murder.
Hernandez testified that around 10:40 p.m. on May 25, 2015, she was in Padilla’s
backyard with Padilla, and they were talking about whether he could fix his car. Owens
was inside the trailer and watching television. Padilla’s backyard was surrounded by a
wood fence and had a wrought iron gate for a car to enter. The backyard was illuminated
by a streetlight directly outside the wrought iron gate, and there were lights on a building
across the street.
Hernandez testified that as she talked with Padilla, she heard someone whistle.
Both Hernandez and Padilla looked toward the gate. Hernandez testified she clearly saw
defendant standing outside the gate from the lighting in the area. He was wearing the
same clothes as when she encountered him earlier that day.
Hernandez testified Padilla walked toward the gate like he was going to speak to
defendant. Hernandez turned toward the trailer and talked with Owens.
Hernandez testified she heard two gunshots. Hernandez again looked at the gate
and saw Padilla lying on the ground. Hernandez testified defendant’s right arm and hand
were sticking through an opening in the gate and “his arm [was] through the gate,
shooting.” Owens pulled her down and she heard more gunshots. After the shots ended,
Hernandez called 911 and Owens tried to help Padilla, but he was not responding.
C. Cross-examination of Hernandez.
Hernandez testified she received immunity to testify and knew she would not be
prosecuted for her involvement in Padilla’s burglary of Herrera’s house and theft of his
drugs.
Hernandez testified she spoke to Detective Gutknecht on the night of the shooting,
and said she heard gunshots, but she did not see the gunman or what happened.
Hernandez made those statements because she was “concerned about James [Owens], and
I was concerned about [Padilla’s] kids because they walked out and seen [Padilla] laying
there” in the backyard, and she wanted everyone to get inside the house.

8.
Hernandez testified that two days after the shooting, she was interviewed again by
the police and did not tell them that she saw the gunman.
About one week after the shooting, Hernandez was interviewed by the police for
the third time and was confronted with information about Padilla’s theft of Herrera’s
drugs, her role in the incident, and the encounter with defendant at the gas station a few
hours before the shooting. At that time, Hernandez told the detectives she saw the
gunman and she was 80 percent sure that Padilla was the shooter.
II. James Owens.
James Owens, Hernandez’s boyfriend, testified he knew Eddie Herrera because he
helped Hernandez operate Herrera’s bar and run drugs for him. He knew defendant from
the bar. Owens ended his involvement in drug sales in 2012, after he was arrested and
had health problems, but Hernandez continued to sell drugs for Herrera.
At the beginning of 2015, Owens and Hernandez were living in Herrera’s rental
house. At some point, Herrera told them to move out. Owens stopped communicating
with Herrera and they moved to Padilla’s house.
Owens testified that around 5:00 p.m. on May 25, 2015, he walked to the store and
gas station with Hernandez and Padilla. When they left the store, defendant was walking
toward them. They went to the gas station and when they left, defendant was standing on
the street.
Owens did not want to get too close to defendant because he “looked a little bit
upset.” Defendant lifted his shirt and showed Owens that “he didn’t have nothing on
him.”
Owens testified defendant started talking about Herrera and said somebody stole
from him. Owens told defendant that he did not know what he was talking about.
Defendant looked at Owens “with disgust,” and suggested Owens call Herrera and “ ‘try
to let him know that you had nothing to do with it.’ ” Owens said he did not have
Herrera’s new telephone number.

9.
Owens shook hands with defendant, they hugged, and defendant said he was going
to talk to Herrera. Owens again said he did not know about a theft, and they went their
separate ways.
Owens testified that on the evening of May 25, 2015, they were at Padilla’s house.
Owens was inside the trailer watching television. Hernandez was standing outside the
trailer talking with Padilla in the backyard.
Owens heard someone whistle by the fence. Owens leaned forward to look
through the trailer’s door and into the backyard. Padilla turned around to see who
whistled and then walked toward the fence. Hernandez walked to the trailer and told
Owens who whistled. Owens heard gunshots and pulled down Hernandez. He looked
outside and saw a steady flash as four or five gunshots were fired in succession from the
gate into the backyard.
III. Patricia Valencia.
Valencia testified she was Jose Ochoa’s girlfriend. On May 25, 2015, they were
living at a friend’s house.6 Valencia testified in the late evening, they were in the friend’s
backyard, and defendant arrived and talked to Ochoa.
Valencia testified she was in the house, “peeked” through a window and saw
defendant hand bullet shells to Ochoa. Valencia testified she heard Ochoa “get a little
loud, and he had told [defendant] that, he was yelling at him telling him he was dumb and
what did he do it for.” Valencia heard Ochoa say “why did [defendant] shoot him, and
[defendant] said that he was done. [Defendant] answered that he was done.”
On further examination, Valencia testified her mother heard the statements and
told her. The court ordered the answer stricken. Valencia testified she did not tell the
police that both she and her mother heard defendant say he shot somebody.

6 Ochoa and Valencia were not living at Padilla’s house. At trial, Ochoa testified
they were staying at the home of Valencia’s mother.

10.
IV. Jose Ochoa.
Ochoa testified about the night that he was with his girlfriend, Patricia Valencia, at
their friend’s house. Ochoa and Valencia were arguing in the backyard. Sometime
between 10:00 p.m. and 11:00 p.m., defendant unexpectedly arrived at this house. At that
time, Ochoa did not know that anyone had been shot.
Ochoa testified defendant said he wanted to get high, but they did not use drugs
that night. Defendant was “amped up” and appeared under the influence. Ochoa had
dropped out of a gang. Defendant told Ochoa about the person currently running the
gang, and said there was a chance for Ochoa to get back in.
Ochoa testified defendant reached into his pocket and produced five or six loose
shell casings, that he believed were from .38-caliber bullets. Defendant said something
had transpired and told Ochoa to get rid of them. Ochoa testified defendant tried to give
the shell casings to him, and Ochoa refused to take them. Defendant put the casings back
in his pocket, said he would get rid of them, and left the area.
Ochoa testified that after he learned of Padilla’s death, he had subsequent
conversations with defendant. Ochoa testified defendant never said he killed Padilla, but
he was “insinuating that he knew how [Padilla] had died,” and said Padilla “[g]ot shot.”
Defendant “had a lot of worries. It was out that supposedly he was being, he was a
person of interest in some type of case .…” Defendant was “just worrying about
something he had did and the only way, [the] only great offense that somebody had to
worry about was pretty much the murder” of Padilla.
Ochoa testified about another conversation with defendant in Ochoa’s garage,
when they both used methamphetamine. Defendant said that on the day of the murder, he
saw Padilla, also known as “Game Over,” and “got into it at the gas station.” Ochoa
testified defendant said “something about [Padilla] being lured into an alley or something
like that,” and defendant also said, “ ‘I let that fool have it.’ ” Defendant said he
regretted it, he “felt bad about it,” and “he shouldn’t have shot him.” Defendant said he

11.
did it for the gang and to be good with the gang. Based on this conversation, Ochoa
believed defendant admitted defendant shot Padilla.
On cross-examination, Ochoa testified he had prior convictions and served prison
time. He was currently in custody for other charges and testifying under a grant of
immunity. Ochoa did not disclose information about defendant until he was arrested in
an unrelated case. Ochoa was paid by the Madera Police Department to disclose what he
knew about Padilla’s death and find out where defendant was. On redirect examination,
Ochoa testified he was told that defendant had an altercation with Padilla at a gas station
on the day of the murder.
V. Law Enforcement Testimony.
Officer Aguilera testified he conducted a recorded interview with Patricia
Valencia on May 28, 2015, after she was arrested for an unrelated matter. Valencia said
she was staying at a friend’s house with Ochoa. Late one night, they were arguing in the
backyard when defendant arrived, and Ochoa told Valencia to go inside. Valencia said
she went inside, but stood behind a door and could still see and hear what happened.
Valencia said defendant told Ochoa that “he had shot someone, and he had some—he had
about four casings that [defendant] wanted [Ochoa] to get rid of.” Valencia said
defendant gave Ochoa the casings, but Ochoa gave them back to defendant.
After the preliminary hearing was conducted, the court held defendant to answer
on the murder charge, the gang special circumstance, and the firearm enhancements.
DEFENDANT’S JURY TRIAL
On October 16, 2015, the information was filed that charged defendant with
count 1, first degree premeditated murder of Padilla, with the gang special circumstance
and the same firearm enhancements. Defendant faced a maximum possible sentence of
LWOP for murder with the special circumstance, plus 25 years to life for the
section 12022.53, subdivision (d) firearm enhancement. Defendant pleaded not guilty.

12.
In January 2016, defendant’s trial began before Judge Blea, who conducted
several days of motions, evidentiary hearings, and jury selection.
The People filed a pretrial motion that requested jury instructions on first and
second degree murder, the special circumstance, and the firearm enhancements. The
People did not request instructions on the felony-murder rule, aiding and abetting,
accomplices, the natural and probable consequences doctrine, or any other felony other
than murder.
In their opening statements, the prosecutor stated the evidence would show
defendant shot and killed Padilla, while defense counsel asserted the evidence would
show Hernandez and Ochoa were not credible and they falsely implicated defendant as
the gunman.
On February 16, 17, and 18, 2016, the People introduced evidence in its case in
chief.
I. The Prosecution’s Evidence.
Padilla’s wife and two stepchildren testified for the prosecution as follows.
Padilla was shot in the backyard of his house on Park Street. At the time of the shooting,
Padilla and his wife were still married, but Padilla was not living with his family on Park
Street, and he maintained a separate residence.7 Padilla regularly visited his family at the
Park Street house and sometimes stayed overnight.
Padilla’s stepson testified Hernandez and Owens were Padilla’s friends, and
Padilla used to hang out with them in the backyard, but they were not friends with
Padilla’s wife. Padilla’s stepdaughter testified that her brother and Padilla did not allow
her to go into the backyard. Padilla’s wife testified she did not want Hernandez and
Owens in her house.

7 Carmen Hernandez testified at trial that Susan Flores was Padilla’s girlfriend.

13.
On the night of May 25, 2015, Padilla arrived at the Park Street house to check on
the family and bring dinner. Around 9:40 p.m., Padilla’s wife left for work on the
nightshift at Walmart. Padilla got something to drink, said he was going to fix a car on
the property, and went into the backyard. Hernandez and Owens were also in the
backyard.
At the time of the shooting, Padilla’s two stepchildren were the only people in the
house, and they were in the living room. The stepdaughter testified she heard five or six
gunshots, the shots were loud, the sounds came from the backyard, and she thought the
shots were fired “a few feet away” from her location in the house.
“[A] few minutes” after the final gunshot was fired, the stepdaughter heard a car
“screech” like it was going fast and “in a hurry to leave.” On cross-examination, she
testified that she heard the car “screech” about “30 seconds” after the final gunshot. The
stepson thought he heard six shots, and he did not hear a car driving away.
The siblings immediately got down to the floor and waited for Padilla to return
inside the house. The stepson eventually went outside because he felt something was
wrong. The police were already there, and the stepson saw Padilla lying on the ground
with gunshot wounds to his head and neck. The stepdaughter testified Hernandez entered
the house and looked shocked and scared. Hernandez called Padilla’s wife at work and
told her what happened.
A neighbor testified she heard five to six gunshots fired and did not hear a car
driving away.
Padilla was shot in the head and leg, taken to the hospital, and died on May 31,
2015. The fatal shot went through his brain. The police did not find any shell casings at
the scene.
A. Jose Ochoa’s trial testimony.
Jose Ochoa testified he had dropped out of a gang after giving information to
police about another case. He provided information to the police in this case about

14.
Padilla’s death after he was taken into custody on another matter, and he received an
immunity agreement. He was placed in a witness protection program, but he left the
placement, took property, and was later found in a stolen vehicle.
Ochoa testified that on the night of May 25, 2015, Ochoa and his girlfriend,
Patricia, were staying at the residence of the girlfriend’s mother. Ochoa and Patricia
were arguing in the backyard when defendant arrived. Ochoa believed Patricia went into
a room at the back of house when defendant arrived.8
Ochoa testified defendant was a little drunk, told Ochoa who was in charge of his
former gang, and said it would be easy for him to get back in the gang.
Ochoa testified defendant opened his hand and showed him four or five shell
casings. Ochoa believed the shells were from .38-caliber special bullets. Defendant
asked Ochoa to get rid of the shell casings for him. Ochoa pushed away defendant’s
hand because he did not want to get involved with the gang again. Defendant said it was
okay, he would “ ‘do it myself,’ ” and left with the shell casings.
About two weeks later, defendant again arrived at the residence where Ochoa was
staying. Ochoa and defendant used methamphetamine, and Ochoa asked if he had
anything to do with Padilla’s death. Defendant never admitted it, but Ochoa testified that
defendant “insinuated” that he was involved because Padilla was also a gang drop-out.
Defendant said he had a “run in” with Padilla at a store earlier on the day of the murder,
told Ochoa about the incident with Padilla at the gas station, and defendant said he “let
that fool have it.”
Ochoa admitted that when the police asked him to get information about the case,
he was told that Padilla was lured into an alley and shot.

8 Patricia Valencia was on the prosecution’s witness list but did not testify before
defendant pleaded guilty.

15.
B. Carmen Hernandez’s trial testimony.
On February 23, 2016, the prosecution began the fourth day of trial by calling
Carmen Hernandez, who testified she received an immunity agreement to testify.
As she did at the preliminary hearing, Hernandez testified she met Eddie Herrera
through her boyfriend, James Owens. She ran Herrera’s bar and sold drugs for him.
Hernandez was familiar with defendant because she saw him around the bar, and knew
defendant and Herrera were friends and possibly relatives.
As of July 2012, Hernandez and Owens lived in Herrera’s rental house on
Avenue 17 as compensation for her work. Hernandez testified Padilla was her best friend
and the godparent to her child. When she was living in Herrera’s rental house, she
became aware that Padilla had an altercation with Herrera. At the time of that altercation,
Padilla told Hernandez that he wanted to rob Herrera by stealing his drugs, but
Hernandez said no.
At the end of April 2015, Herrera told Hernandez and Owens that they had to
immediately move out of the rental house. They did not immediately move out because it
took them awhile to move their possessions. Hernandez told Padilla that they had to find
somewhere to live, and Padilla invited them to live at his house.
While Hernandez was still living at the Avenue 17 house, but after Herrera said
they had to move out, Padilla told Hernandez he was going to steal Herrera’s drugs from
his house. Hernandez initially said no, but then she said she didn’t care and told Padilla
the location of Herrera’s drug stash.
Hernandez testified she was not present during the burglary, but she knew Padilla
broke into Herrera’s house on B Street and stole drugs and trading cards. After the
burglary, Padilla called Hernandez and told her to meet him in the basement of the Park
Street house. Hernandez testified that John Salcedo was walking out of the backyard
when she arrived. Hernandez went to the basement and met Padilla, his girlfriend Susan
Flores, and Cesar Cruz. Padilla had stolen drugs, trading cards, and a small amount of

16.
cash from Herrera’s house. Padilla divided the stolen property with Hernandez and Cruz.
Hernandez only took the drugs and was not interesting in the trading cards.9
Hernandez and Owens moved into Padilla’s basement about a week and one-half
after Herrera told her to get out of the Avenue 17 house. Hernandez and Owens later
moved into a trailer that she parked in Padilla’s backyard.
Hernandez testified that sometime between 5:00 p.m. and 6:00 p.m. on May 25,
2015, Memorial Day, she left the Park Street house with Owens, Padilla, and Susan
Flores. They walked to a nearby Walgreen’s store and then a gas station store. When
they left the gas station, defendant appeared on the street and stopped them. Defendant
lifted his shirt, and said he did not have any weapons and he was just there to talk.
Defendant asked Owens “why was Eddie [Herrera] saying that James [Owens] robbed
him, and that it … could only have been James because James knew where everything
was.” Owens said he did not know what defendant was talking about. Defendant said he
would talk to Herrera and get back, hugged Owens, and left.
Hernandez testified she returned to the Park Street house around 9:45 p.m., and
she saw Padilla’s wife leave for work. Hernandez went into the backyard, entered the
trailer, and talked with Owens. Padilla went to the basement and then the backyard.
Hernandez testified she walked over to Padilla, and they stood in the backyard and
talked about a car that Padilla was trying to repair. Hernandez was facing the gate, and
Padilla was looking toward the trailer.
Hernandez testified she heard someone whistle. Padilla turned toward the gate,
whistled back, and walked toward the gate. Hernandez heard the gate chain rattle. She

9 In their opening statements, both the prosecutor and defense counsel stated the
evidence would show that Padilla committed the burglary and theft at Herrera’s house
with Cesar Cruz and John Salcedo. Hernandez testified that she saw Salcedo and Cruz
after the burglary and theft, but the prosecution had not yet introduced evidence about
whether Padilla had accomplices when defendant entered his plea, and no further
evidence was introduced.

17.
looked toward the gate and saw defendant standing outside the gate. Hernandez testified
the area was illuminated by both streetlights and strong lights on a nearby building.
Hernandez walked toward the trailer, and Owens asked her who was at the gate.
Hernandez then heard a gunshot and looked at the gate.
Hernandez testified she saw defendant “with his arm through the fence” and she
saw a flash. Owens grabbed Hernandez and pulled her down, and she heard additional
gunshots. She believed five to six shots were fired. After the last shot, Hernandez called
911 and saw Padilla lying on the ground.
II. The Parties Indicate a Possible Resolution.
As the prosecutor started to ask Hernandez about her prior statements to the
investigating officers, the court stated they were getting close to lunch and the prosecutor
agreed it was a good time to break. The court excused the jury and Hernandez for the
noon recess.10
After the jury and the witness left the courtroom, the court addressed Mr. Alvarez,
defense counsel, and asked if there was a potential resolution. Mr. Alvarez replied that
the prosecutor had to consult with his office. Mr. Peterson, the prosecutor, said there was
a resolution that should be “pretty straightforward.” The court directed the parties to
return at 1:00 p.m., and it would continue hearing evidence if the charges were not
resolved. Mr. Alvarez asked the court if the clerk had a change-of-plea form. The court
said it would provide one.

10 Prior to Hernandez’s testimony, other detectives testified about their investigation
of the murder scene and witness interviews. Detective Shecklanian testified he
interviewed Carmen Hernandez on June 2, 4, and 5, 2015. When he started to testify
about her prior statements, defense counsel objected, and the court ordered the limited
testimony stricken as hearsay. Detective Gutknecht testified he took statements from
Hernandez and Owens, and did not testify about what they said.

18.
PLEA PROCEEDINGS
After the noon recess on February 23, 2016, the court reconvened without the jury.
Defendant was present with Mr. Alvarez. Hernandez was not recalled to the stand.
Instead, the prosecutor and Mr. Alvarez said they had reached a resolution of the case.
I. Plea Form.
The parties presented the court with a form entitled “Declaration Regarding Guilty
Plea” (Declaration), with the appropriate information filled in. Defendant initialed each
paragraph, and defendant and Mr. Alvarez signed the form.
The declaration stated defendant was charged with “PC 187(a) w/190.2 and
12022.53(b), (c), & (d),” first degree murder with a special circumstance and firearm
enhancements; defendant would plead guilty to “1st degree murder, PC 187(a), waiver of
appellate rts.,” and his sentence would be 25 years to life, a fine of $10,000, and lifetime
parole. There was a preprinted space for restitution, but it was not filled in.
One of the declaration’s preprinted paragraphs stated defendant was not induced to
plead guilty “by any promise or representation of a lesser sentence, probation, reward,
immunity, or anything else, except as stated below,” and the following was written in:
“Dismiss special circumstance allegation along w/gun and gang enhancements.”11
The parties stipulated to the preliminary hearing transcript and the partial trial
transcript for the factual basis for the plea.
According to the declaration, defendant was in possession of all his faculties and
had not consumed any drugs, narcotics, or alcoholic beverages in the prior 24 hours to
impair his judgment; he did not need additional time to think about the plea; and he was
entering his plea freely and voluntarily. Defendant further declared his attorney had

11 As a result of the negotiated disposition, defendant no longer faced the LWOP
term plus 25 years to life.

19.
explained the allegations in the information, and he understood the nature of the charges
and possible defenses.
Defendant signed the following statement at the end of the document: “I have
personally prepared and discussed with my attorney, or have read, discussed and had
explained to me by my attorney, each of the above items, and I understand same.”
Mr. Alvarez signed a similar declaration in the document, that verified he discussed and
explained the contents of the document with defendant.
II. Plea Hearing.
After the court reviewed the Declaration form, the prosecutor stated the parties
agreed to the following disposition.

“… [D]efendant will plead guilty to count 1, violation of … section 187(a),
first degree murder, for a 25-to-life term. And there will be a waiver of
appellate rights. For this plea, the People will dismiss the remaining gang
and gun allegations, which would have given an exposure of life without
the possibility of parole.”
The court asked defendant if he heard and understood the terms of the negotiated
disposition, and that he would be sentenced to 25 years to life. Defendant said yes. The
court asked if he understood that he would not be eligible for parole until he had served
25 years. Defendant said yes.
The court asked defendant if he understood his waiver of appellate rights meant he
was “waiving your right to complain there was any defect in … any of the proceedings
leading up to this trial or in the trial itself.” Defendant said yes. The court asked if any
promises had been made to induce him to plead guilty, aside from the terms of the
negotiated disposition. Defendant said no.
The court granted the prosecutor’s motion to amend the information to strike an
erroneous reference in count 1 to section 664, subdivision (a) (attempted murder), and
instead allege the murder was committed willfully, deliberately, and with premeditation
within the meaning of section 189, and the offense was a serious felony within the

20.
meaning of section 1192.7, subdivision (c)(1) and a violent felony pursuant to
section 667.5, subdivision (c)(1).
The court asked defendant if he read and understood the details about his plea in
the declaration form and had sufficient time to speak with his attorney about it.
Defendant said yes. The court asked defendant if he initialed each paragraph and signed
the document. Defendant said yes.
The court fully advised defendant of his constitutional rights and asked if he
understood and waived each right. Defendant said yes.
The court asked if he had taken “any alcohol, drugs, or other medication to
interfere with your ability to understand the things that we’re discussing.” Defendant
said: “Yes, sir—I mean, no sir.”
The court next asked about the factual basis for the plea:

“THE COURT: …. [A]re the People willing to submit as a factual
basis the preliminary hearing transcript, as well as the trial transcript up to
this point?

“[THE PROSECUTOR]: Yes, your Honor. [¶] And I would just state for
the record a brief summary: That on or about May 25th, 2015, in the
County of Madera, the defendant did approach Demetrius Padilla while
Demetrius Padilla was in his backyard that evening, and did shoot
Demetrius Padilla deliberately, and with premeditation.

“THE COURT: Mr. Alvarez, do you stipulate to that factual basis?

“MR. ALVAREZ: As well as to the transcripts thus far in the case, yes.

“THE COURT: Thank you.”12 (Italics added.)

12 As will be discussed below, defendant contends that trial counsel was prejudicially
ineffective for stipulating to the prosecutor’s statement as part of the factual basis for his
plea. He also asserts his attorneys during the section 1172.6 proceedings were
prejudicially ineffective for failing to raise defense counsel’s alleged ineffectiveness by
stipulating to the factual basis, because it permitted the trial court to rely on that factual
basis to find he was the actual killer and deny his petition.

21.
The court advised defendant that if he was found guilty of count 1, he would be
sentenced to 25 years to life and could be fined up to $10,000. If he was released on
parole, he would be on parole for life. If he was not a citizen, his plea “would result in
your deportation, your exclusion from admission to the United States, and denial of
naturalization under the laws of the United States.” Defendant said he understood.13
The court took defendant’s plea:

“THE COURT: Count 1 of the Information alleges that on May 25,
2015, in the County of Madera, you committed a felony violation of …
section 187, sub (a), in that you did unlawfully and with malice
aforethought murder Demetrius Padilla, a human being. [¶] It’s further
alleged that the murder of Demetrius Padilla was committed willfully,
deliberately, and with premeditation within the meaning of … Section 189
and is a serious felony pursuant to … Section 1192.7, sub (c), sub (1), and a
violent felony pursuant to … Section 667.5, sub (c), sub (1).”
Defendant pleaded guilty. The court found defendant entered his plea knowingly,
intelligently, and voluntarily, ordered the preparation of the probation report, and set the
sentencing hearing.
Thereafter, the court called the jurors into the courtroom, stated there was a
resolution of the case, and thanked and discharged them.

As also will be explained below, the trial court at the section 1172.6 hearing did
not rely on the factual basis for defendant’s plea to find he was the actual killer and
instead made that determination after it reviewed the preliminary hearing and partial trial
transcripts. Moreover, Patton disapproved of appellate decisions that “conditioned the
use of preliminary hearing transcripts [to make the prima facie determination] on whether
a petitioner previously admitted the truth of testimony contained therein or stipulated to
the transcript as the factual basis of a plea.” (Patton, supra, 17 Cal.5th at p. 569, fn. 12.)
13 As noted in this court’s nonpublished opinion in defendant’s direct appeal, the trial
court did not advise defendant that, pursuant to section 1192.5, its approval of the plea
was not binding, it could withdraw its approval at the sentencing hearing, and if it did,
defendant could then withdraw his plea.

22.
DEFENDANT’S MOTION TO WITHDRAW PLEA
On March 10, 2016, a few weeks after defendant entered his plea, defense counsel
filed a motion for defendant to withdraw his guilty plea because defendant was allegedly
under the influence of alcohol and possibly narcotics, and he was subject to anxiety that
may have impaired his mental abilities when he entered the plea. The motion was
supported by defendant’s declaration that on the day of the plea, he consumed eight cups
of “pruno” and took “some pills” in jail; he had mental issues; he was under extreme
pressure and anxiety; and all these factors affected his ability to enter his plea. Defendant
further declared his family believed that he had made a bad decision, that they wanted
him to get a lawyer and take back his plea, and that they knew he was innocent.
On March 16, 2016, the People filed opposition and argued the record showed
defendant indicated numerous times that he understood the consequences of his waivers
and guilty plea; he declared he had not used drugs or alcohol when he signed the plea
form; he made a similar statement during the plea hearing; and defendant did not display
any signs of being impaired.
I. The Probation Report.14
The probation report, filed with the trial court on March 15, 2016, stated that
defendant told the probation officer he intended to withdraw his guilty plea; his lawyer
did not fight for him; and he got the “worst deal ever.” Defendant said he did not make
the right decision because of stress, anxiety, and depression. Defendant said he had never
been diagnosed with any mental health conditions, and he was not taking medication. He
claimed that he heard voices and suffered from anxiety and depression. Defendant said
he cut himself and tried to commit suicide approximately eight times.

14 At the hearing on defendant’s motion to withdraw his plea, the trial court and the
parties addressed defendant’s statements to the probation officer, and the probation report
was addressed in this court’s nonpublished opinion from his direct appeal.

23.
The probation report also addressed victim restitution. It stated that a victim
services representative had submitted documentation for victim restitution for Padilla’s
family, including specific amounts for Padilla’s hospital and funeral expenses, for a total
of $8,048.69. The victim compensation program had already paid for these expenses,
and the report recommended the court order all restitution payable to the California
Victim Assistance Center.
The probation report recommended a sentence of 25 years to life pursuant to the
terms of the plea agreement, plus a restitution fine of $300, and a specific list of separate
fines, fees, and assessments of over $41,000. The probation report also recommended
victim restitution of $8,048.69 payable to the Victim Assistance Center on behalf of
Padilla’s family. The documents in support of the victim restitution claim were attached
to the probation report.
HEARING ON MOTION TO WITHDRAW PLEA & SENTENCING
On March 29, 2016, the court convened a hearing on defendant’s motion to
withdraw his plea. Defendant was present with Mr. Alvarez.
The prosecutor argued that while defendant’s motion and supporting declaration
claimed he was on alcohol and drugs when he entered his plea, defendant did not make
the same allegations when he spoke to the probation officer.
The court agreed defendant’s motion claimed he was intoxicated at the plea
hearing “on some jail concocted alcohol, an unidentified yellow pill. That’s not
referenced in the probation report. In fact, the probation report lists other reasons why
[defendant] is seeking to withdraw his guilty plea. The only consistent grounds [are] that
[defendant] was feeling anxiety at the time that he entered into the plea.”
The court asked Mr. Alvarez if it correctly stated defendant’s allegations.
Mr. Alvarez replied that was “contained in the [probation report] that I received, as well
as the declaration by [defendant]. I think the Court is characterizing it accurately.”

24.
I. Denial of Motion to Withdraw.
The court found defendant was fully advised of his constitutional rights, said he
understood and waived his rights, said he had not received any other promises or
inducements to plead guilty aside from the plea agreement, and initialed and signed the
plea form as to the same advisements. The issue was whether defendant “was intoxicated
to a point where he was unable to understand … what he was doing and understand the
terms of the plea.” The court cited the plea transcript where defendant “assured the Court
that he had not taken any drugs, alcohol, or medication that interfered with his plea.
Based on that, and based on my observations of [defendant], I didn’t observe any
behavior or anything that led me to believe that he was intoxicated at the time of the
change of plea. [¶] Further, [defendant] represented to the probation officer that he was
under stress, anxiety, and depression at the time of the sentencing. I suspect that most
people who are sentenced are stressed, experiencing anxiety, and are on one level or
another depressed, and don’t know that that necessarily interferes … with one’s ability to
understand the terms of the plea that is being offered, and whether they’re in a condition
to intelligently make a decision related to that plea.”
The court denied defendant’s motion to withdraw his plea for failing to establish
good cause because “there’s nothing that has been presented to the court now that
changes the Court’s position that [defendant] make a knowing, intelligent, and voluntary
waiver of his rights. He understood the consequences of his plea, and he entered into that
plea with full knowledge of those consequences.”
Defendant requested to address the court. He was sworn and stated he suffered
from mental problems; he cut himself to deal with problems; he was depressed and felt he
was living in a dream during the trial; he did not understand what was going on; he heard
voices; all the prosecution’s witnesses were drug addicts, making up stories and lying;
and it was wrong for him to go to prison for something he did not do.
The prosecutor replied that the People did not fabricate any evidence.

25.
Mr. Alvarez advised the court that defendant was “just reiterating that he was
under a lot of stress, that he would like to withdraw his plea.” Defendant interjected: “It
was a mistake.”
As to his claim of mistake, the court stated it was certainly clear at the plea
hearing that defendant entered his plea knowingly, intelligently, and voluntarily, and did
so after having the opportunity to discuss the matter with his attorney. “And he assured
the Court, based on my inquiries on the date that he changed his plea, that all of those
factors were true.”
II. Sentencing.
The court proceeded with the sentencing hearing and heard statements from
members of Padilla’s family about the impact of his murder. Defense counsel did not
object to the probation report’s recommendation for victim restitution, but argued the
court should stay the additional recommendation for imposition of over $41,000 in
separate fines and fees because of defendant’s inability to pay and the severity of his life
sentence.
The court sentenced defendant to 25 years to life for murder, plus a $300
restitution fine pursuant to section 1202.4, subdivision (b). The court imposed a victim
restitution order for $8,048.69 pursuant to section 1202.4, subdivision (f), payable to the
Victim Assistance Center. The court separately imposed other fines, fees, and
assessments for a total of $41,430.
The court advised defendant that while he waived his appellate rights as part of his
plea agreement, he had the right to appeal from the court’s denial of his motion to
withdraw his plea.
Defendant filed a notice of appeal to challenge the validity of his plea and
sentence and sought and received a certificate of probable cause based on “ineffective
assistance” and his alleged intoxication at the time of his plea.

26.
DIRECT APPEAL
On appeal from the judgment, defendant argued the trial court should have granted
his motion to withdraw his guilty plea. In doing so, however, defendant relied on a
reason not given in his motion to withdraw, and asserted he was not advised that the court
would impose a victim restitution order as a condition of his plea.
On June 6, 2018, this court filed the nonpublished opinion in Holguin I, and found
defendant’s waiver of appellate rights as part of his plea agreement did not include the
waiver of an appeal from the denial of his motion to withdraw his plea, possible future
errors that allegedly occurred after his plea, or a claim of ineffective assistance in
connection with the making of the plea and waiver agreement.
As for the merits of his claim, we agreed the trial court did not read the section
1192.5 restitution admonishment at the plea hearing or advise him about a potential
restitution order, but held defendant was not entitled to withdraw his plea and defense
counsel’s failure to so advise was not prejudicial, because counsel argued the court
should stay and not impose the additional fines and fees.
On September 12, 2018, the California Supreme Court denied defendant’s petition
for review.
SECTION 1172.6 PETITION FOR RESENTENCING
On October 26, 2022, defendant filed, in propria persona, a petition in the trial
court for resentencing of his first degree murder conviction pursuant to section 1172.6,
and requested appointment of counsel.
Appellant filed a supporting declaration that consisted of a preprinted form where
he checked boxes that (1) he was eligible for resentencing because a complaint,
information, or indictment was filed that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and probable consequences doctrine;
(2) he pleaded guilty or no contest to first or second degree murder in lieu of going to
trial because he believed he could have been convicted of first or second degree murder

27.
at trial pursuant to the felony murder rule or the natural and probable consequences
doctrine; (3) he could not presently be convicted of first or second degree murder because
of changes made to section 188 and 189, effective January 1, 2019; (4) he could not now
be convicted of first degree murder because of changes to section 189, effective
January 1, 2019, because he was not the actual killer; he did not, with the intent to kill,
aid, abet, counsel, solicit, request, or assist the actual killer in commission of first degree
murder; he was not a major participant in the felony or act with reckless indifference to
human life during the course of the crime or felony; the victim was not a peace officer;
and (6) there has been a prior determination by a court or jury that he was not a major
participant and/or did not act with reckless indifference to human life under section
190.2, subdivision (d), and was entitled to resentencing.
On November 21, 2022, the court appointed the public defender’s office to
represent defendant.
I. The People’s Opposition.
On December 21, 2022, the People filed opposition to the petition and argued
defendant failed to state a prima facie case for relief and attached the transcript from the
plea hearing as a supporting exhibit. The People argued that when defendant entered his
plea, the prosecutor stated the factual basis was based on the preliminary hearing and
partial trial transcripts, and the prosecutor also stated “a brief summary” of the evidence,
that it showed defendant shot and killed Padilla. Defense counsel stipulated to the record
and the prosecutor’s summary for the factual basis.
The People argued defendant’s petition failed to state a prima facie case for
resentencing because the factual basis stipulation at the plea hearing amounted to an
adoptive admission, and showed defendant was the actual killer and ineligible for relief
as a matter of law.

28.
SUBSTITUTIONS OF DEFENSE COUNSEL
After the court appointed the public defender’s office to represent defendant on his
section 1172.6 petition, the court relieved appointed counsel and appointed new attorneys
for various reasons, which resulted in numerous continuances of the proceedings.
On January 17, 2023, defendant filed a motion in propria persona for appointment
of a new attorney because the public defender never contacted him, previously
represented defendant’s brother, and did not do anything for him.
On January 27, 2023, the court relieved the public defender and appointed the
Madera Alternate Defense office. On March 13, 2023, the Madera Alternate Defense
office declared a conflict and requested appointment of “wheel” attorney Cristobal Perez.
On March 24, 2023, the court relieved Madera Alternate Defense and appointed Mr.
Perez to represent defendant.
I. Marsden Hearing.15
On April 28, 2023, the court convened a status hearing on defendant’s section
1172.6 petition. Defendant was present with Mr. Perez and immediately moved to
discharge Mr. Perez pursuant to People v. Marsden (1970) 2 Cal.3d 118. Thereafter, the
court conducted a confidential hearing on the Marsden motion.
A. Confidential hearing.
At the Marsden hearing, defendant complained Mr. Perez disagreed with his
strategy on the petition and failed to meet with him about his case. Defendant also
complained that Mr. Perez would not address ineffective assistance claims arising from
the plea hearing.

15 When a defendant raises a Marsden issue or an issue related to Marsden on
appeal, this court and the parties may address the contents of the in camera Marsden
hearing. (Cal. Rules of Court, rule 8.47; People v. Knight (2015) 239 Cal.App.4th 1, 7–
8.) By prior order, and without objection from the parties, we have unsealed appellant’s
opening brief and will address the court’s ruling at the Marsden hearing.

29.
Mr. Perez said that when defendant stipulated to the factual basis for his plea at the
plea hearing, that constituted an adoptive admission that he was the actual killer for
purposes of the prima facie finding. As for defendant’s ineffective assistance complaints,
Mr. Perez stated he was a friend of Mr. Alvarez, who represented defendant at trial, and
he did not feel comfortable arguing that Mr. Alvarez was ineffective or having to cross-
examine him at an evidentiary hearing if necessary.
The court found a conflict and relieved Mr. Perez.
After the Marsden hearing, the court reconvened in the presence of the prosecutor
and stated it granted defendant’s Marsden motion and relieved Mr. Perez. The court
appointed Alexander Martin.
In May and September 2023, the court relieved Mr. Martin because of a conflict,
and appointed Samuel Lutton, followed by Regina Adams, and discharged them because
of conflicts.
II. Appointment of Fitzgerald Firm.
On September 29, 2023, the court appointed the Fresno office of Fitzgerald,
Alvarez & Ciummo (FAC Fresno) to represent defendant.
On October 5, 2023, Richard Dunia from the FAC Fresno firm appeared with
defendant, and requested a continuance because he did not have a definite answer as to
whether his firm had a conflict.
A. Defendant’s reply brief.
On October 10, 2023, Emily Takao of the FAC Fresno firm filed defendant’s reply
brief in support of his section 1172.6 petition, and cited authorities that held the trial
court could not make the prima facie determination based on this court’s nonpublished
opinion in his direct appeal, or by reviewing the preliminary hearing transcript.
Defendant argued his petition was facially valid and stated a prima facie case, and an
evidentiary hearing should be held.

30.
DENIAL OF DEFENDANT’S SECTION 1172.6 PETITION
On October 12, 2023, the court convened the prima facie hearing on defendant’s
section 1172.6 petition. Defendant was present with Mr. Dunia of the FAC Fresno firm.
Mr. Dunia advised the court that at the last hearing, he was asked if he had any
conflicts to represent defendant. “My secretaries had double-checked. There is no
conflict. We’re prepared to help [defendant] out in this matter. [¶] I am prepared to go
forward today.”
The court asked Mr. Dunia if he was prepared to go forward for defendant, or
whether it was Ms. Takao’s case. Mr. Dunia stated this was Ms. Takao’s case and she
filed the reply brief, but she out of town and unable to appear. Mr. Dunia stated he would
request a continuance if the court had questions about the case for Ms. Takao, and if not,
he would submit the matter.16
Ms. Williamson, the prosecutor, stated the case was assigned to Mr. Peterson in
their office, she was appearing for him because he was sick, and his notes indicated this
was supposed to be a setting hearing. Ms. Williamson said she was prepared to submit
the matter, but she would also request a continuance for Mr. Peterson to appear if the
court had questions.
The court reviewed defendant’s petition and the parties’ briefs and said it did not
have any questions and believed “it’s just a legal issue on whether there is … a prima
facie case has been established. And I think I have enough information to rule on it.”
The court asked Mr. Dunia if the matter was submitted.

“MR. DUNIA: Your Honor, the issue that I’m having is I’m prepared
to submit on the papers Ms. [Takao] filed. [Defendant] is in disagreement

16 The reporter’s transcript quotes the court and attorneys as referring to the attorney
who filed defendant’s reply brief as “Ms. Tecow.” It appears the reporter misunderstood
either the spelling or pronunciation of Ms. Takao’s name since they were clearly referring
to her reply brief. We will use Ms. Takao’s correctly spelled name.

31.
as far as if that is what he would like done. [¶] I’m prepared to submit on
the papers, though.

“THE COURT: Do you have any additional legal arguments to present
as to the issue of whether there’s been a prima facie case established?

“MR. DUNIA: Your Honor, I don’t have any additional legal
arguments with regards to that. [Defendant] wants to present additional
new evidence, should the Court find it there—additional new evidence. I
explained that that is the second phase. He wants to have that be included
in the first phase.

“THE COURT: That’s not part of this process. [¶] First, there has to be a
prima facie case established. And that’s what this hearing is all about.”17
(Italics added.)
I. The Court’s Denial of the Petition.
The court stated that to make the prima facie finding under section 1172.6, it
“must consider the factual allegations in the petition as true and make a preliminary
assessment regarding whether the petitioner is entitled to the relief requested. [¶] The
Court shouldn’t make any credibility determinations or weigh the evidence in the matter
before conducting an evidentiary hearing following the issuance of an order to show
cause. The Court may, however, rely on the record of conviction in evaluating whether
the order to show cause should issue.”
The court stated that based on the interpretations of section 1172.6 in People v.
Lewis (2021) 11 Cal.5th 952 (Lewis) and People v. Delgadillo (2022) 14 Cal.5th 216, it
would rely on the “record of conviction in evaluating whether the order to show cause
should issue” because the record allowed the court “to distinguish petitions with potential
merit from those that are clearly meritless.” The court would not engage in fact finding,
weighing of evidence, or exercising discretion, but “when the record makes it clear that

17 In issue VIII, post, we will address defendant’s contentions based on this
exchange, that Mr. Dunia violated attorney-client confidentiality by referring to
confidential discussions with his client, and that the trial court improperly prevented
defendant was presenting additional evidence in support of his petition.

32.
the petitioner was the actual killer and the only participant in the killing, the petitioner is
not entitled to relief under [section] 1172.6.”
The trial court reviewed the preliminary hearing and partial trial transcripts as part
of the record of conviction and made the following findings.

“So in reviewing the Court’s record and the record of conviction in
this matter, on October 2, 2015, Carmen Hernandez testified at the
preliminary hearing in this case.

“Ms. Hernandez testified that on May 25, 2015, she and her
boyfriend, James, were sitting with the decedent, Demetrius Padilla, in
Demetrius’s backyard. She heard a whistle coming from a wrought iron
gate leading to the backyard, and she saws a person standing at the gate,
whom she identified as [defendant].

“Carmen testified that Demetrius approached the gate to speak with
[defendant]. She turned away and she heard gunshots. When she looked
back at the gate from the direction from where she heard the gunshots, she
saw Demetrius laying on the ground. Carmen testified at the preliminary
hearing that she saw [defendant’s] arm extended through the gate, shooting
a gun.

“During her testimony at trial and before [defendant] changed his
plea to ‘guilty,’ Carmen again testified that [defendant] was the person who
shot Demetrius.

“There’s no evidence offered at the preliminary hearing or trial to
indicate that anyone other than [defendant] was standing at the wrought
iron gate, firing the gun at Demetrius. The record of conviction in this
matter makes it clear that [defendant] was the actual killer and the only
participant in the killing of Mr. Padilla.

“Accordingly, there is no prima facie case established, because
[defendant] was the actual killer, and may still be convicted, even after the
amendments to … Sections 188 and 189.”
Defendant attempted to personally address the court. The court advised defendant
that he could file an appeal from the denial of the section 1172.6 petition and raise any
issues he had with the process. Defendant tried to interrupt. The court said that
defendant could not “present some new evidence” because “[t]his is purely a legal issue.

33.
It’s just the application of the statute and the Supreme Court’s decision. [¶] So there’s
really nothing more to discuss. But you have the right to appeal.…”
On October 13, 2023, defendant filed a timely notice of appeal from the denial of
his section 1172.6 petition.
DISCUSSION
Defendant asserts that even though Patton now permits a trial court to rely on the
preliminary hearing transcript to make the prima facie determination on a section 1172.6
petition, the evidence at both the preliminary hearing and partial trial was conflicting and
required the court to make credibility determinations and factual findings that should
have been made at an evidentiary hearing.
The People argue Patton applies to this case, and the preliminary hearing and
partial trial transcripts established that defendant was the only person identified as the
actual killer of Padilla, and the trial court correctly found he was ineligible for
resentencing as a matter of law.
I. Section 1172.6.
We begin with the provisions of section 1172.6. “Effective January 1, 2019,
Senate Bill No. 1437 (2017−2018 Reg. Sess.) amended the felony-murder rule by adding
section 189, subdivision (e). [Citation.] It provides that a participant in the qualifying
felony is liable for felony murder only if the person: (1) was the actual killer; (2) was not
the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a
major participant in the underlying felony and acted with reckless indifference to human
life. [Citation.] The Legislature also amended the natural and probable consequences
doctrine by adding subdivision (a)(3) to section 188, which states that ‘[m]alice shall not
be imputed to a person based solely on his or her participation in a crime.’ ” (People v.
Harden (2022) 81 Cal.App.5th 45, 50– 51; People v. Strong (2022) 13 Cal.5th 698, 707–
708; People v. Reyes (2023) 97 Cal.App.5th 292, 295.)

34.
Effective January 1, 2022, Senate Bill No. 775 (2020–2021 Reg. Sess.) (Senate
Bill 775) amended former section 1170.95 in several respects, codified the holding in
People v. Lewis (2021) 11 Cal.5th 952 and clarified that, in some circumstances, the same
relief available to persons convicted of murder is also available to persons convicted of
attempted murder or manslaughter, and addressed various aspects of the petition
procedure, including the petitioner’s right to counsel, the standard for determining the
existence of a prima facie case, the burden of proof at the hearing to determine whether a
petitioner is entitled to relief, and the evidence a court may consider at that hearing.
(People v. Birdsall (2022) 77 Cal.App.5th 859, 865 & fn. 18; People v. Hurtado (2023)
89 Cal.App.5th 887, 892.) On June 30, 2022, the statute was renumbered as section
1172.6 without further substantive changes. (People v. Saibu (2022) 81 Cal.App.5th 709,
715, fn. 3.)
Section 1172.6, subdivision (a) thus states that a person may file a petition for
resentencing if “convicted of felony murder or 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, attempted murder under the natural and
probable consequences doctrine, or manslaughter .…”
As relevant herein, the petitioner must declare “(1) A complaint, information, or
indictment was filed against the petitioner 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. (2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could have been convicted of murder or attempted murder. (3) The petitioner
could not presently be convicted of murder or attempted murder because of changes to

35.
Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a)(1)–(3); Patton,
supra, 17 Cal.5th at p. 558.)
“[W]hen a petitioner files a facially sufficient petition, the trial court must appoint
counsel to represent the petitioner. The trial court may consider the record of conviction
to determine whether the petitioner makes a prima facie showing only after the
appointment of counsel and the opportunity for briefing has occurred.” (People v. Reyes,
supra, 97 Cal.App.5th at p. 298; Patton, supra, 17 Cal.5th at p. 559.)
In making the prima facie determination, the trial court “may look at the record of
conviction … to determine whether a petitioner has made a prima facie” showing.
(Lewis, supra, 11 Cal.5th at p. 971.) “The record of conviction will necessarily inform
the trial court’s prima facie inquiry under section 1170.95, allowing the court to
distinguish petitions with potential merit from those that are clearly meritless. This is
consistent with the statute’s overall purpose: to ensure that murder culpability is
commensurate with a person’s actions, while also ensuring that clearly meritless petitions
can be efficiently addressed as part of a single-step prima facie review process.
[Citation.] [¶] While the trial court may look at the record of conviction after the
appointment of counsel to determine whether a petitioner has made a prima facie case for
section [1172.6] relief, the prima facie inquiry under 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.” ’ [Citations.] ‘[A] court
should not reject the petitioner’s factual allegations on credibility grounds without first
conducting an evidentiary hearing.’ [Citations.] ‘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.” ’ ” (Ibid.)

36.
The amendments to sections 188 and 189 did not invalidate murder convictions
based on the theory that the defendant was the actual killer. (People v. Strong, supra,
13 Cal.5th at p. 707; People v. Mares (2024) 99 Cal.App.5th 1158, 1166–1167.) Where
the record of conviction shows the defendant was the actual killer, he was not convicted
under a now-invalid imputed malice theory and ineligible for relief as a matter of law,
and no evidentiary hearing is required. (People v. Harden, supra, 81 Cal.App.5th at
pp. 47–48, 52; People v. Garcia (2022) 82 Cal.App.5th 956, 973.)
If the trial court commits error in making the prima facie finding to deny the
petition without an evidentiary hearing, the error is harmless if the defendant is ineligible
for resentencing as a matter of law. (Lewis, supra, 11 Cal.5th at pp. 973–974.)
II. Patton.
At the time of the hearing on defendant’s petition, and the initial briefing in this
appeal, it was settled that when a petitioner is convicted after a jury trial, the trial court
may rely on the record of conviction to make the prima facie determination pursuant to
section 1172.6, and the record of conviction includes the charging documents, jury
instructions, and verdicts. (People v. Harden, supra, 81 Cal.App.5th at pp. 50, 54–55;
People v. Flores (2023) 96 Cal.App.5th 1164, 1170.)
It was also settled that “[a]lthough the trial court may consider the ‘procedural
history’ of a prior appellate opinion at the evidentiary hearing (§ 1172.6, subd. (d)(3)), it
cannot consider the factual summary of a prior appellate opinion at any stage of the
section 1172.6 petition process [citation].” (People v. Glass (2025) 110 Cal.App.5th 922,
929; Lewis, supra, 11 Cal.5th at p. 972; People v. Beaudreaux (2024) 100 Cal.App.5th
1227, 1237–1238.)
Also at that time, however, appellate courts disagreed about the nature of the
record of conviction when a petitioner is convicted after entering a plea and subsequently
files a section 1172.6 petition for resentencing. The appellate courts were divided on
whether the trial court could review the preliminary hearing transcript as part of the

37.
record of conviction to make the prima facie determination. Some courts held such
reliance was only permissible if the petitioner stipulated to the preliminary hearing
transcript as the factual basis for the plea. (Patton, supra, 17 Cal.5th at p. 561.)
There were also appellate decisions that held the trial court could not rely on the
preliminary hearing transcript to make the prima facie determination, because such
reliance necessarily required making factual findings, and an evidentiary hearing was
required to determine if a petitioner who was convicted after a plea was eligible for
resentencing pursuant to section 1172.6. (Patton, supra, 17 Cal.5th at pp. 561–562.)
In Patton, the California Supreme Court resolved this disagreement and held that
in making the prima facie determination, the preliminary hearing transcript “preceding a
guilty plea” (Patton, supra, 17 Cal.5th at p. 568) is part of the record of conviction and
the trial court may “rely on unchallenged, relief-foreclosing facts within a preliminary
hearing transcript to refute [the petitioner’s] conclusory, checkbox allegations” (id. at
p. 564).
Patton acknowledged that the court previously “placed limits on the use of
preliminary hearing transcripts to prove disputed facts, but these limits are inapplicable
here.” (Patton, supra, 17 Cal.5th at p. 568.) Patton explained resolution of the prima
facie inquiry may not “call for resolution of a factual dispute” but, “[r]ather than
resolving a contested factual dispute, statements within … [the] preliminary hearing
transcript [may] contribute[] specific factual assertions about [the petitioner’s]
conviction — namely, that it was premised on him being the sole shooter. [A
petitioner’s] conclusory checkbox allegations alone could not create a factual dispute
about whether he played a meaningfully different role in the [completed or attempted
homicide].” (Id. at pp. 568–569, italics added.)
Patton held previous appellate rulings which prohibited reliance on the
preliminary hearing transcript “overlooked the issue-framing role a transcript can play” in
making the prima facie determination. (Patton, supra, 17 Cal.5th at p. 569.)

38.
“[A] section 1172.6 petitioner who, despite having access to counsel upon
submission of a facially sufficient petition, offers only conclusory
allegations of entitlement to relief, in response to a record of conviction that
demonstrates the petitioner’s conviction was under a still-valid theory, has
not … made a prima facie showing. Where facts from the record of
conviction are undisputed, accepting them over contrary legal allegations
that are merely conclusory is not ‘ “factfinding involving the weighing of
evidence or the exercise of discretion.” ’ [Citations.] Indeed, denial of a
resentencing petition because its conclusory allegations do not counter the
facts in a record of conviction that forecloses relief is a determination that
the petition’s allegations are legally deficient, ‘not a ruling on the merits of
the issues which petitioner has attempted to raise.’ [Citation.]” (Id. at
pp. 565–566, fn. omitted.)
Patton explained that “petitioners need not, at the prima facie stage, meet an
evidentiary burden of proof to establish entitlement to relief, such as the burden of proof
applicable to the People if trying to defeat relief at the later [section 1172.6,]
subdivision (d)(3) [evidentiary] hearing. Rather, petitioners confronting a record of
conviction that demonstrates relief is unavailable have the burden of coming forward
with nonconclusory allegations to alert the prosecution and the court to what issues an
evidentiary hearing would entail. It follows from what we have said already that should
a trial court encounter a material fact dispute, the court may not resolve that dispute at the
prima facie stage and should instead grant petitioner an evidentiary hearing, assuming
relief is not otherwise foreclosed.” (Patton, supra, 17 Cal.5th at pp. 566–567, italics
added.)
“Thus, while it may be that a record can ‘ “ ‘refut[e] the allegations made in the
petition’ ” ’ [citation], it would be somewhat imprecise to say that evidence in a
preliminary hearing transcript, offered at the prima facie stage, ‘ “irrefutably
establishes” ’ any particular fact to any particular standard of proof [citation]. A
conclusion that a record refutes an allegation at the prima facie stage is not, moreover, a
conclusion about the strength of evidence in the record.” (Patton, supra, 17 Cal.5th at
p. 567, fn. 10.)

39.
“A dispute regarding the basis of a conviction might arise if, for
instance, a petitioner points to specific facts that identify someone else as
the direct perpetrator. At the least, as the People note …, this may come
from the record itself. But absent specific facts, no such dispute arises …
from mere latent, speculative possibilities; that is, a hypothetical alternate
direct perpetrator cannot be conjured from thin air or a legal conclusion.”
(Id. at p. 567, italics added.)
Patton further explained that a petitioner has multiple opportunities to proffer
specific facts to raise such a dispute because “the initial petition itself, which is not
limited to the allegations found on preprinted forms, begins, but does not end, the inquiry.
Subdivision (c) [of section 1172.6] expressly anticipates a petitioner’s reply to the
People’s response and, ‘[a]fter the parties have had an opportunity to submit briefings,’
arguments at a hearing.” (Patton, supra, 17 Cal.5th at p. 567.) The trial courts should
“implement section 1172.6 so that petitioners have ‘meaningful’ opportunities to present
their petitions. [Citations.] Nothing in subdivision (c), for instance, has dissuaded courts
from, as appropriate, permitting a substitute petition for resentencing after appointment of
counsel.” (Id. at p. 568.)18
Patton disapproved of prior appellate decisions that “conditioned the use of
preliminary hearing transcripts [to make the prima facie determination] on whether a
petitioner previously admitted the truth of testimony contained therein or stipulated to the
transcript as the factual basis of a plea.” (Patton, supra, 17 Cal.5th at p. 569, fn. 12.)
Patton applied these conclusions to affirm the trial court’s denial of the
defendant’s petition in that case. The defendant had been charged with premeditated

18 Patton cautioned that “[t]he extent to which it might be proper to rely on a
preliminary hearing transcript at the evidentiary hearing under section 1172.6,
subdivision (d) is not before us. At such a hearing, the statute permits consideration of
‘evidence previously admitted at any prior hearing or trial that is admissible under current
law, including witness testimony, stipulated evidence, and matters judicially noticed’
except ‘hearsay evidence that was admitted in a preliminary hearing pursuant to
subdivision (b) of Section 872 … , unless the evidence is admissible pursuant to another
exception to the hearsay rule.’ ” (Patton, supra, 17 Cal.5th at p. 569, fn. 11, italics
added.)

40.
attempted murder and other offenses with gang, firearm, and great bodily injury
enhancements. At the preliminary hearing, “police officers recounted watching
surveillance video of a shooting at a motel office. The court received into evidence
several still photos from the video depicting a shooter firing his gun at a victim. An
officer who was familiar with [the defendant] from previous encounters identified him as
the shooter in the video. Another officer testified the shooter in the video was wearing
jeans matching those [the defendant] was wearing in a photograph police later acquired.
The defense presented no evidence.” (Patton, supra, 17 Cal.5th at p. 557, fn. omitted.)
The defendant pleaded no contest to attempted murder and admitted the section
12022.53, subdivision (c) enhancement, that he personally and intentionally discharged a
firearm in the commission of the offense, and the People agreed to dismiss the
premeditation allegation and remaining charges. The defendant’s attorney concurred in
the plea and “ ‘stipulated to a factual basis,’ ” and the defendant was sentenced to
29 years. (Patton, at p. 558.)
The defendant later filed a section 1172.6 petition for resentencing by using “a
preprinted form developed by the Office of the State Public Defender, he checked boxes
next to statements indicating that he met the statutory conditions for relief,” and
“[f]ollowing the form’s minimalist prompts, he offered no specific facts in support of
these statements.” (Patton, supra, 17 Cal.5th at p. 559.) The People’s opposition argued
the preliminary hearing transcript showed the defendant was the sole participant in the
shooting and he admitted the personal discharge enhancement, so that he was convicted
as the direct perpetrator of the crime. The defendant’s counsel did not file a reply. (Ibid.)
At the prima facie hearing, the trial court relied on the preliminary hearing and plea
transcript, and found the defendant was the actual shooter who acted alone “under the
unrebutted preliminary hearing transcript.” (Id. at p. 560.) The appellate court affirmed
and held the trial court properly relied on the preliminary hearing transcript as part of the
record of conviction. (Id. at pp. 560–561.)

41.
Patton affirmed the trial court’s prima facie finding because the defendant’s
petition “offered only conclusory allegations of entitlement to resentencing relief under
section 1172.6 in response to a record of conviction that the lower courts viewed as
foreclosing it because that record foreclosed the conclusion that [the defendant’s]
conviction was under a now-invalid homicide theory. [The defendant’s] petition contains
only a checkbox declaration with legal conclusions, he submitted no reply, and he made
no argument when invited to do so at the prima facie hearing. After determining the
facial validity of a resentencing petition and before ordering an evidentiary hearing, a
trial court may properly … reference the record of conviction to ‘ “ ‘refut[e]’ ” ’ [citation]
conclusory allegations in furtherance of its statutorily required screening function at that
juncture of a section 1172.6 proceeding. The Court of Appeal correctly concluded this is
not impermissible factfinding and correctly concluded [the defendant] had not, on the
record before it, made a prima facie showing.” (Patton, supra, 17 Cal.5th at p. 569.)
While Patton held the trial court’s prima facie finding as to defendant’s petition
was not erroneous, it granted the defendant’s request “to be permitted to plead additional
facts on remand” and, “out of an abundance of caution,” ordered remand to the trial court
“with directions for that court to consider an amended petition should [the defendant]
within 30 days of that remand, seek to file one.” (Patton, supra, 17 Cal.5th at pp. 569–
570.)

III. The Trial Court Correctly Relied on the Preliminary Hearing and Partial
Trial Transcripts to Deny Defendant’s Petition.
In this case, the trial court conducted the prima facie hearing on defendant’s
petition prior to the decision in Patton, inferentially determined the preliminary hearing
and partial trial transcripts were part of the record of conviction, and found defendant was
the actual killer and ineligible for resentencing as a matter of law.
In light of Patton, we find that the trial court properly relied on these transcripts to
make the prima facie determination that defendant was the actual killer of Padilla, and

42.
ineligible for resentencing since he was not charged and did not plead guilty pursuant to
now-invalid imputed malice theories of murder.
The transcripts showed that at both the preliminary hearing and abbreviated trial,
Carmen Hernandez identified defendant as the gunman who stood at the gate and
whistled to get Padilla’s attention, Padilla walked toward him, and defendant fired
multiple shots at Padilla. Hernandez recognized defendant from her employment at
Herrera’s bar, and knew defendant and Herrera were friends and possibly relatives. She
was very familiar with Herrera’s associates, and never stated or testified that she thought
Herrera or another person was the gunman.
The investigating officers testified they did not find any shell casings at the
murder scene. Patricia Valencia testified that late on the same night as the shooting,
defendant arrived at the residence where she was staying with her boyfriend, Jose Ochoa.
Both Valencia and Ochoa testified defendant produced shell casings, asked Ochoa to get
rid of the shells, and Ochoa refused. Valencia reported that she heard Ochoa yelling at
defendant that “he was dumb and what did he do it for.” Ochoa also testified about his
later conversations with defendant, and defendant’s inculpatory statements regarding the
shooting.
At trial, Ochoa again testified that defendant showed up at the residence where he
was staying with his girlfriend, defendant showed him four or five shell casings, asked
Ochoa to get rid of them, and Ochoa refused. He again testified about defendant’s
inculpatory statements during their subsequent meetings, when defendant “insinuated”
that he was involved, said he had a “run in” with defendant at a store earlier on the day of
the murder, and he “ ‘let that fool have it.’ ”
Patton explained that “[the] preliminary hearing transcript [may] contribute[]
specific factual assertions about [the petitioner’s] conviction — namely, that it was
premised on him being the sole shooter. [A petitioner’s] conclusory checkbox allegations

43.
alone could not create a factual dispute about whether he played a meaningfully different
role in the [completed or attempted homicide].” (Patton, supra, 17 Cal.5th at p. 569.)
The testimony from defendant’s preliminary hearing and partial trial similarly
refuted the “[c]onclusory allegations, such as the checkbox ones offered” in defendant’s
form petition. (Patton, supra, 17 Cal.5th at p. 564.) The court was not required to
resolve any credibility issues about the witnesses to find the felony-murder rule and/or
the natural and probable consequences doctrine were not implicated in this case.
Defendant did not present any evidence at the preliminary hearing, but based on
counsel’s cross-examination of the witnesses, it appears defendant’s argument was
mistaken identification. Defendant was not facing conviction for murder under the now-
invalid imputed malice theories of the felony-murder rule or the natural and probable
consequences doctrine, and the trial court correctly found he failed to make a prima facie
case for resentencing since he was the actual killer and ineligible for relief.
IV. Defendant’s Arguments.
Defendant acknowledges the holding in Patton, and that a trial court may rely on
the preliminary hearing transcript as part of the record of conviction to make the prima
facie finding.
Defendant asserts that in contrast to Patton, however, the evidence in the
preliminary hearing and partial trial transcripts that he was the actual killer was not
undisputed, and the court was still required to make factual findings because the
witnesses gave inconsistent statements, their credibility was impeached, and there was
evidence at both the preliminary hearing and trial suggesting other people were involved
in the murder. Defendant also raises several ineffective assistance arguments based on
both the plea hearing and the prima facie hearing. We now address his contentions.
A. Defendant’s continued attacks on his plea.
As explained above, while defendant waived his appellate rights as part of the
negotiated disposition, he maintained the right to file an appeal from the trial court’s

44.
denial of his motion to withdraw his plea. This court filed a nonpublished opinion that
fully addressed defendant’s arguments and affirmed the trial court’s denial of his motion
to withdraw.
In the course of this appeal from the denial of defendant’s section 1172.6 petition,
however, defendant continues to suggest his plea was invalid for various reasons. In
challenging the denial of his petition, defendant states his jury trial “was cut short.”
Defendant’s jury trial was not “cut short” because of any actions by the court or the
People, but by defendant’s agreement to plead guilty to murder pursuant to the negotiated
disposition that resulted in dismissal of the special circumstance and the firearm
enhancements, which eliminated the LWOP sentence.
Defendant further states that even though he pleaded guilty to murder, he
immediately sought to revoke his plea “by a written declaration, signed by [defendant]
under penalty of perjury, maintaining his innocence….” He admits that in his direct
appeal, this court affirmed the denial of his motion to withdraw his plea, but asserts that
“[i]n subsequent years, [defendant] continued to file unsuccessful challenges in the trial
court, trying to undo the plea, arguing, among other things, the ineffective assistance of
his trial counsel.” In doing so, defendant apparently tries to connect his prior and current
ineffective assistance claims to undermine both his plea and the denial of his petition for
resentencing.
In making these arguments, defendant cites to his post-judgment motions and
petitions that are part of the instant record on appeal. Defendant filed these pleadings in
the trial court, in propria persona, and all his motions and petitions were denied. In these
pleadings, defendant raised ineffective assistance claims based on defense counsel’s
alleged failure to raise issues in support of his motion to withdraw his plea, and failure to
advise him about his constitutional rights, the consequences of the plea, the restitution
order, that he would not receive overnight visits in prison, and he would be placed on
parole for the rest of his life. These contentions are refuted by the record of his plea. In

45.
addition, this court’s opinion in the direct appeal held the trial court’s failure to advise
defendant about the possibility of a victim restitution order did not violate the plea
agreement or permit defendant to withdraw his plea since victim restitution was
mandatory.
Also in his postjudgment pleadings, defendant asserted the trial court, the
prosecutor, and defense counsel were “corrupt” because they worked for and with the
“Lumanati,” he wanted a new attorney who was not tied to the “Lumanati” or the
“Masons,” a prison guard told him the trial judge belonged to “the prosecution’s Masonic
court,” defendant would have been released if he had a lawyer “like Kyle Rittenhouse”
did, and defense counsel never advised him that he would be forced to work like a
“slave” in prison.
“The mere filing of a section [1172.6] petition does not afford the petitioner a new
opportunity to raise claims of trial error .… To the contrary, ‘[n]othing in the language of
section [1172.6] suggests it was intended to provide redress for allegedly erroneous prior
factfinding.… The purpose of section [1172.6] is to give defendants the benefit of
amended sections 188 and 189 with respect to issues not previously determined, not to
provide a do-over on factual disputes that have already been resolved.’ ” (People v.
Farfan (2021) 71 Cal.App.5th 942, 947; People v. DeHuff (2021) 63 Cal.App.5th 428,
438; People v. Burns (2023) 95 Cal.App.5th 862, 867–868.)
Defendant’s continued assertions about the alleged invalidity of his plea, counsel’s
alleged ineffective assistance at the plea hearing, and the trial court’s denial of his motion
to withdraw his plea, were rejected by this court in his direct appeal and found meritless
in his post-judgment motions and petitions. These contentions are not cognizable in this
appeal from the denial of his section 1172.6 petition.
B. Defendant’s alleged “immunity” from being found to be the gunman.
As a separate matter from his assertions about his plea, defendant asserts he
pleaded guilty “in exchange for inter alia the dismissal of” the enhancement for personal

46.
discharge of a firearm, and his “actual plea agreement promised immunity from the
allegation that he personally shot Mr. Padilla.” (Italics added.)
Defendant claims he “agreed to accept a guilty plea in exchange for a dismissal of
the allegation that he personally and intentionally shot the gun, proximately resulting in
the victim’s death.” Defendant argues this alleged “fact” distinguishes this case from the
situation in Patton, where the defendant in that case admitted a firearm enhancement and
that he was the gunman.
Defendant thus concludes that when he entered his plea, he “specifically rejected
the allegation that he was the person who personally shot Mr. Padilla” and “specifically
refused to admit he was the shooter,” so that there is “a material, factual dispute as to
who shot” Padilla regardless of his plea to murder.
In entering into a plea agreement or negotiated disposition, “ ‘the defendant agrees
to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe
punishment than that which could result if he were convicted of all offenses charged.
[Citation.] This more lenient disposition of the charges is secured in part by prosecutorial
consent to the imposition of such clement punishment [citation], by the People’s
acceptance of a plea to a lesser offense than that charged, either in degree [citations] or
kind [citation], or by the prosecutor’s dismissal of one or more counts of a multi-count
indictment or information…. [I]mplicit in all of this is a process of “bargaining” between
the adverse parties to the case—the People represented by the prosecutor on one side, the
defendant represented by his counsel on the other—which bargaining results in an
agreement between them.’ ” (People v. Allan (1996) 49 Cal.App.4th 1507, 1514.)
The record does not support defendant’s assertions that he pleaded guilty to
murder based on the condition that dismissal of the firearm enhancements meant he could
never be found to be the actual gunman. Defendant was charged with murder with a
special circumstance, along with multiple firearm enhancements. If he had been
convicted after a jury trial and the special allegations found true, defendant faced a

47.
maximum possible sentence of LWOP for special circumstance murder plus 25 years to
life for a section 12022.53, subdivision (d) firearm enhancement.
Defendant entered his plea on the fourth day of the prosecution’s evidence, after
Hernandez again identified him as the actual killer, and before defense counsel cross-
examined Hernandez. As a result of the plea, defendant no longer faced the LWOP term
or addition terms for the firearm enhancements, and he was sentenced to 25 years to life
for murder.
In claiming that his “actual plea agreement promised immunity from the allegation
that he personally shot Mr. Padilla,” defendant cites the clerk’s transcript in this appeal at
page 18, which is final page of his change-of-plea form. This document does not support
his “immunity” claim from ever being found as the actual killer. Paragraph 17 of the
form begins with preprinted language that stated: “I have not been induced to plea[d]
GUILTY by any promise or representation of a lesser sentence, probation, reward,
immunity, or anything else, except as stated below.…” This statement was followed by
spaces to write in the terms of the plea agreement, and the following language was filled
in: “Dismiss special circumstance allegation along w/gun and gang enhancements.”
While the negotiated disposition provided that the defendant would not be tried
and convicted of special circumstance murder with firearm enhancements, the record
does not support defendant’s claim that the negotiated disposition was specifically
conditioned on dismissal of the firearm enhancements that granted him some type of
“immunity” from a postjudgment determination that he was the actual killer. The
determination that defendant was the actual killer did not belatedly expose him to an
increased sentence but instead resulted in defendant not being eligible for a reduced
under section 1172.6. (See, e.g., People v. Blackburn (1999) 72 Cal.App.4th 1520, 1527
[“[W]hen a plea bargain calls for striking an enhancement, that merely means the
enhancement cannot be used to enhance the current conviction”].)

48.
Finally, defendant argues that Patton held the petitioner therein was the actual
killer because of both the preliminary hearing evidence and his admission to the charged
firearm enhancement, and the absence of a similar admission in this case is inconsistent
with the trial court’s finding that defendant was the actual killer. The firearm
enhancements that were alleged in this case were never sent to a jury, and the court did
not dismiss the enhancements pursuant to a motion to strike for insufficient evidence.
Instead, the court dismissed the special circumstance and the firearm enhancements
consistent with the terms of the negotiated disposition.
Moreover, a true finding on a section 12022.53 firearm enhancement would not
necessarily mean that a petitioner was the actual killer for purposes of a section 1172.6
petition. (See, e.g., People v. Jones (2003) 30 Cal.4th 1084, 1119–1120; People v. Young
(2005) 34 Cal.4th 1149, 1205; People v. Garrison (2021) 73 Cal.App.5th 735, 743;
People v. Offley (2020) 48 Cal.App.5th 588, 598–599.)
The absence of a true finding on a firearm enhancement as part of defendant’s
negotiated disposition was not inconsistent with the record of conviction showing
defendant was the actual killer and ineligible for resentencing.
C. The credibility of the witnesses.
While defendant acknowledges the holding in Patton, and that the trial court relied
on the preliminary hearing and partial trial transcripts to make the prima facie
determination, he argues there was “a material dispute” in this case about the gunman’s
identity because both Hernandez and Ochoa were impeached and had credibility
problems. Defendant asserts Hernandez’s testimony was undermined by her admission
that she failed to reveal defendant’s identity as the gunman in her first and second
interviews with law enforcement officers, she identified defendant in the third interview
only because she was confronted with her involvement in Padilla’s theft of Herrera’s
drugs, and she testified after being granted immunity for the drug theft. Defendant argues
Ochoa similarly lacked credibility because he testified under a grant of immunity, he was

49.
a paid informant, and he provided information about Padilla after being arrested in
another case.
Hernandez readily admitted her involvement in running drugs for Herrera and she
received immunity for being involved in Padilla’s theft of Herrera’s drugs. Hernandez
did not receive immunity because she faced perjury charges in this case. As for Ochoa,
his description of defendant’s conduct and statements in the hours immediately after the
murder, when he asked Ochoa to get rid of the shell casings and made certain statements
that night, were corroborated by Valencia. More importantly, there was no other
evidence introduced at either the preliminary hearing or the partial trial that another
person committed the murder.
D. Defendant’s theories about other possible suspects.
Defendant argues that in contrast to the record of conviction in Patton, the
preliminary hearing and partial trial transcripts suggest he was charged under a now-
invalid imputed malice theory because he was possibly an accomplice before the murder,
based on his confrontation of Padilla, Hernandez, Owens, and Flores at the store and
questions about the theft from Herrera; and he was an accomplice after the murder, based
on his request for Ochoa to get rid of the bullet casings. Defendant points to trial
testimony from Padilla’s stepdaughter, that she heard a car screeching away “just seconds
later” after the shooting, and argues her testimony was consistent with the presence of a
getaway driver, which meant a second person was present and defendant could have been
charged as an accomplice before or after the fact.
As set forth above, the stepdaughter’s testimony was slightly different. She said
that “a few minutes” after she heard the final gunshot, she heard a car “screech” like it
was going fast and “in a hurry to leave.” On cross-examination, she testified that she
heard the car screech about “30 seconds” after she heard the final gunshot. Under either
time span, defendant would have had sufficient time to leave the backyard gate, return to
a vehicle, and drive away.

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Defendant next asserts the preliminary hearing and partial trial transcripts showed
there was “a plethora of evidence” that “a number of other people” were either involved
in and/or present at the time of the shooting, and the trial court improperly made a factual
finding that defendant was the actual killer in the face of contrary evidence about other
perpetrators. Defendant suggests Hernandez, Owens, Eddie Herrera, “as well as any and
all” of Herrera’s other associates may have killed Padilla as an act of loyalty to Herrera.
However, there was no evidence that Herrera or an unknown person was seen at or
around Padilla’s house on the night of the shooting. It was undisputed that Hernandez
and Owens were in the backyard at the time of the shooting, and there was no evidence
that either of them shot Padilla or were seen with a gun or shell casings before or after the
shooting.
Defendant suggests other possible suspects included those who were involved in
Padilla’s burglary of Herrera’s rental house, because they “may have had a motive to
come onto [Padilla’s] wife’s property that evening and, for example, seize a greater
portion of the previously stolen loot, includ[ing] Cesar Cruz, the victim’s girlfriend
[Susan Flores], and a man named John Salcido, given all these individuals were present
around the time the loot was initially divided into thirds on the same property.” The
record again refutes this claim. Hernandez testified Padilla committed the burglary and
theft of Herrera’s drugs and split up the stolen drugs with Hernandez and Cruz, and/or
Salcedo and Flores, before Hernandez and Owens moved into Padilla’s basement.
Hernandez testified she moved onto Padilla’s property about three weeks before
the shooting, and there was no evidence Cruz and/or Salcedo were present on the day of
the shooting. As for Flores, Hernandez testified she was with them when they walked to
the store and were confronted by defendant, but there was no evidence Flores was still at
Padilla’s house when he was shot that night.
Defendant also offers the following scenario, albeit “admittedly less plausibl[e],”
where members of Padilla’s family could have been involved since they were inside the

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house when he was shot: Padilla had a girlfriend, he was not living at the house with his
wife, he allowed his “criminal associates” Hernandez and Owens to live in the backyard
trailer, he conducted “nefarious activities” in the basement by dividing the stolen
property with Hernandez and the others, and the “situation was so bad” that Padilla told
his stepdaughter not to go into the backyard. Again, this scenario is undermined by the
actual evidence—Padilla arrived at the house with food for his family, his wife left for
work, his two stepchildren were inside the house at the time of the shooting, and there
was no evidence the wife returned from work or the children emerged from their house to
shoot Padilla.
As explained by the California Supreme Court, the “ ‘prima facie bar was
intentionally and correctly set very low’ ” but it is not meaningless. (Lewis, supra,
11 Cal.5th at p. 972.) A petitioner “confronting a record of conviction that demonstrates
relief is unavailable ha[s] the burden of coming forward with nonconclusory allegations
to alert the prosecution and the court to what issues an evidentiary hearing would entail.”
(Patton, supra, 17 Cal.5th at p. 567.) A petitioner may satisfy this burden by pointing to
“specific facts that identify someone else as the direct perpetrator.” (Ibid.) However, a
factual dispute does not arise “from mere latent, speculative possibilities; that is, a
hypothetical alternate direct perpetrator cannot be conjured from thin air or a legal
conclusion.” (Ibid.)
Defendant’s scenarios in his appellate briefing about other possible killers,
running the gamut from Herrera to Padilla’s stepchildren, lacks any support in the record
of conviction and consists of the type of “latent, speculative possibilities” disapproved in
Patton as being “conjured from thin air.” (Patton, supra, 17 Cal.5th at p. 567.)

V. Ineffective Assistance; Defense Counsel’s Factual Basis Stipulation at the Plea
Hearing.
In both his pre- and post-Patton briefing, defendant has raised ineffective
assistance arguments based on the conduct of his defense attorney, Mr. Alvarez, when he

52.
stipulated to the factual basis for his plea at the plea hearing. Defendant argues the trial
court could not rely on the factual basis stipulation to find he was the actual killer,
defense counsel was prejudicially ineffective for entering into the stipulation, and his
attorneys during the section 1172.6 proceedings were prejudicially ineffective for failing
to raise defense counsel’s alleged ineffectiveness. In issue VII, post, we will address his
separate argument that his attorneys during the section 1172.6 proceedings failed to
properly represent him because of an alleged conflict with Mr. Alvarez, his trial attorney.
A. Pleas and the factual basis.
When a defendant enters a plea, the trial court must “garner information regarding
the factual basis for the plea from either defendant or defense counsel to comply with
section 1192.5. If the trial court inquires of the defendant regarding the factual basis, the
court may develop the factual basis for the plea on the record through its own
examination by having the defendant describe the conduct that gave rise to the charge
[citation], or question the defendant regarding the factual basis described in the complaint
or written plea agreement. [Citations.] If the trial court inquires of defense counsel
regarding the factual basis, it should request that defense counsel stipulate to a particular
document that provides an adequate factual basis, such as a complaint, police report,
preliminary hearing transcript, probation report, grand jury transcript, or written plea
agreement. [Citation.] Under either approach, a bare statement by the judge that a
factual basis exists, without the above inquiry, is inadequate.” (People v. Holmes (2004)
32 Cal.4th 432, 436.)
B. The factual basis stipulation at the plea hearing.
Defendant’s ineffective assistance arguments are based on his plea hearing in
2016, when the parties stipulated to the factual basis for his plea. As set forth above, the
trial court asked the parties for the factual basis for his plea.

53.
“THE COURT: …. [A]re the People willing to submit as a factual
basis the preliminary hearing transcript, as well as the trial transcript up to
this point?

“[THE PROSECUTOR]: Yes, your Honor. [¶] And I would just state for
the record a brief summary: That on or about May 25th, 2015, in the
County of Madera, the defendant did approach Demetrius Padilla while
Demetrius Padilla was in his backyard that evening, and did shoot
Demetrius Padilla deliberately, and with premeditation.

“THE COURT: Mr. Alvarez [defense counsel], do you stipulate to that
factual basis?

“MR. ALVAREZ: As well as to the transcripts thus far in the case, yes.

“THE COURT: Thank you.” (Italics added.)
C. Defendant’s arguments about the factual basis stipulation.
Defendant asserts the People improperly argued in its opposition to his section
1172.6 petition that the trial court could rely on defense counsel’s factual basis stipulation
at the plea hearing to find he was the actual killer. Defendant asserts his defense
counsel’s factual basis stipulation at the plea hearing did not constitute an adoptive
admission or a stipulation to every fact raised by the allegations, including that he was the
actual killer of Padilla, the advisement and waivers of his constitutional rights for his plea
did not address an adoptive admission to being the actual killer, and such a conclusion
would be “contrary” to the alleged “immunity” promise he received in the plea agreement
as to the firearm enhancements.
Defendant’s arguments in his initial briefing were based on pre-Patton opinions
that held a factual basis stipulation at a plea hearing did not constitute a “’binding
admission for all purposes’” to find a petitioner was the actual killer and ineligible for
resentencing under section 1172.6. (See, e.g., People v. Flores (2022) 76 Cal.App.5th
974, 990, 992, disapproved in Patton, supra, 17 Cal.5th at pp. 561, 569.) As explained
above, however, Patton’s holding that the preliminary hearing transcript is part of the

54.
record of conviction was not conditioned on whether the defendant stipulated to the
preliminary hearing transcript as the factual basis for his plea. (Patton, at p. 569.)
In any event, regardless of the arguments raised in the People’s opposition to
defendant’s section 1172.6 petition for resentencing, the trial court at prima facie hearing
never stated that it found defendant was the actual killer based on defense counsel’s
factual basis stipulation at defendant’s plea hearing in 2016. Instead, as acknowledged
by defendant, the court expressly reviewed the preliminary hearing and partial trial
transcripts to find defendant was the actual killer and ineligible for resentencing as a
matter of law.

D. Defendant’s other contentions regarding defense counsel’s factual basis
stipulation at the plea hearing.
Despite defendant’s concession the trial court did not rely on the factual basis
stipulation to find he was the actual killer, he asserts in his post-Patton supplemental
briefing that the People were still relying on the adoptive admission theory of that
stipulation to argue he was the actual killer. Defendant again argues he was not bound by
defense counsel’s factual basis stipulation at the plea hearing, the stipulation did not
constitute an adoptive admission, and his plea did not constitute a knowing, intelligently,
and voluntary waiver to make such an admission.
Defendant further argues that in the course of the section 1172.6 proceedings, he
could have collaterally challenged the validity of defense counsel’s factual basis
stipulation at the plea hearing, based on the alleged ineffective assistance of Mr. Alvarez,
his defense counsel throughout the trial and plea proceedings, and his attorneys during
the section 1172.6 proceedings were prejudicially ineffective for failing to challenge the
validity of defense counsel’s factual basis stipulation.
In making these arguments, defendant’s post-Patton briefing cites the People’s
responsive brief, filed prior to Patton, where it argued the trial court correctly denied his
section 1172.6 petition based on defense counsel’s factual basis stipulation at the plea

55.
hearing. In the People’s post-Patton supplemental brief, however, the People did not
renew the adoptive admission argument, and instead acknowledged defense counsel’s
factual basis stipulation at the plea hearing was irrelevant to the trial court’s reliance on
the preliminary hearing and partial trial transcripts to make the prima facie determination
that defendant was the actual killer.
Defense counsel’s factual basis stipulation at the plea hearing is not relevant to
any issues in this case, since Patton held such a stipulation was not required to rely on a
preliminary hearing transcript to make the prima facie determination, the trial court did
not rely on or treat the stipulation as an adoptive admission to deny the section 1172.6
petition, and the court’s prima facie finding was independently based on the transcripts.
VI. Ineffective Assistance of Counsel During the Section 1172.6 Proceedings.
Defendant argues the attorneys who represented him during the section 1172. 6
proceedings were prejudicially ineffective because they “did not meet the bare minimum
required, even pre-Patton.” Defendant argues the attorney who prepared the reply to the
People’s opposition to his section 1172.6 petition filed “a completely unresponsive,
boilerplate reply brief” that “completely ignored the prosecutor’s entire argument” and
did not raise defense counsel’s alleged ineffective assistance for making the factual basis
stipulation at the plea hearing.
Defendant further asserts the attorney who appeared at the prima facie hearing
“had no personal knowledge” of his case, he was an “unprepared stand-in,” he submitted
the matter without addressing the record, he violated his ethical duty “to have ‘carefully’
investigated the facts and relevant law,” and he violated attorney-client privilege by
disclosing confidential communications with defendant to the court.
A. Ineffective assistance.
“In order to demonstrate ineffective assistance, a defendant must first show
counsel’s performance was deficient because the representation fell below an objective
standard of reasonableness under prevailing professional norms. [Citation.] Second, he

56.
must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is
shown when there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (People v. Williams
(1997) 16 Cal.4th 153, 214–215.)
“[A] court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.… If it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that course should be followed.”
(Strickland v. Washington (1984) 466 U.S. 668, 697.)
B. Analysis.
The record refutes defendant’s claims of ineffective assistance during the section
1172.6 proceedings. As set forth above, defendant filed his section 1172.6 petition for
resentencing in propria persona, by checking boxes on a preprinted form that alleged he
was eligible for resentencing. The People filed opposition and, as explained above,
argued the trial court could rely on the factual basis stipulation at the plea hearing to find
defendant was the actual killer.
After the Marsden hearing and numerous substitution orders, the court appointed
the FAC Fresno firm to represent defendant in the section 1172.6 proceedings.
Ms. Takao of that firm filed defendant’s reply brief to the People’s opposition, and
correctly argued the trial court could not rely on this court’s nonpublished opinion in his
direct appeal to make the prima facie determination; this argument was consistent with
Lewis, supra, 11 Cal.5th at p. 972, and has not been undermined by Patton. Ms. Tacao’s
reply brief also made the argument that was being followed by some appellate courts
prior to Patton—that the trial court could not rely on the preliminary hearing transcript to
make the prima facie determination, defendant’s petition was facially valid and stated a

57.
prima facie case for relief even though he used a preprinted form, and an evidentiary
hearing was required. (See, e.g., Patton, supra, 17 Cal.5th at pp. 561–562.)
As for his representation at the prima facie hearing, Mr. Dunia, who was in the
FAC firm, appeared for Ms. Takao. The court asked Mr. Dunia if he was prepared to go
forward or whether it was Ms. Takao’s case. Mr. Dunia stated Ms. Takao filed the reply
brief and it was her case, but she out of town and unable to appear. Mr. Dunia stated he
would request a continuance for Ms. Takao to appear if the court had questions about the
case, and he was prepared to submit the matter if the court did not have any questions.
The prosecutor made the same request if the court had questions.
The trial court reviewed the parties’ briefs, said it did not have any questions,
stated the question raised a legal issue and, by relying on the preliminary hearing and
partial trial transcripts, made the inferential finding that the transcripts were part of the
record of conviction. The court reviewed the testimony from those transcripts and made
extensive findings that defendant was the actual killer and ineligible for resentencing.
Ms. Takao was not ineffective for filing a reply brief in the section 1172.6
proceedings consistent with Lewis’s holding that the trial court could not rely on the
nonpublished opinion from defendant’s direct appeal, and the position taken by other
appellate courts at that time, that the trial court could not rely on the preliminary hearing
transcript to make the prima facie determination. Moreover, Mr. Dunia was not
ineffective when he appeared at the prima facie hearing and expressly stated he would
move for a continuance if the court wanted to hear further arguments on the matter. The
prosecutor made the identical request, and the court stated it was prepared to rule on the
legal question that it could rely on the transcripts to make the prima facie determination.
Finally, defendant asserts Mr. Dunia was prejudicially effective at the prima facie
hearing because he disclosed “to the court and to the prosecutor … confidential attorney-
client communications with [defendant], with respect to their dispute over tactics, in
apparent breach of the duty of confidentiality.”

58.
Defendant’s argument is apparently based on an exchange that occurred toward
the end of the section 1172.6 hearing, after the court stated it did not have any questions.
Mr. Dunia advised the court that he was prepared to submit the matter if it did not have
any questions, and further stated defendant “is in disagreement as far as if that is what he
would like done.” The court asked if he had additional arguments as to whether a prima
facie case for relief was established. Mr. Dunia replied he did not have additional
arguments, but defendant “wants to present additional new evidence, should the Court
find it there—additional new evidence. I explained that that is the second phase. He
wants to have that be included in the first phase.” The court stated that was not part of
the process, because it had to first make the prima facie determination.
Mr. Dunia did not violate the attorney-client privilege during this exchange.
Instead, he was trying to explain to defendant the statutory procedures required under
section 1172.6, and that the court had to make the prima facie determination before it
could consider additional evidence at an evidentiary hearing. This brief explanation did
not result in disclosure of any confidential information related to the substantive issues of
his case.19
VII. Ineffective Assistance; Right to Conflict-free Counsel.
As already addressed herein, defendant asserts Mr. Alvarez, his defense attorney at
the plea hearing, was prejudicially ineffective because he stipulated to the prosecutor’s
statement that the factual basis for the plea was t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11208090. Public record. Not legal advice.