People v. Sarabia CA5

Filed 1/27/26 P. v. Sarabia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,

F088349

Plaintiff and Respondent,

(Super. Ct. No. 14CMS-3764D)

v.

DANIEL SARABIA, OPINION

Defendant and Appellant.

APPEAL from an order of the Superior Court of Kings County. Michael J.

Reinhart, Judge.

Kyle Gee, 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, Amanda D. Cary, Christina Simpson

and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.

Sarah Hacker, Kings County District Attorney, Katherine Smith, Deputy District

Attorney Supervisor, and Crystal Howard, Contracted Prosecuting Attorney, as Amicus

Curiae.

-ooOoo-

INTRODUCTION

Defendant Daniel Sarabia petitioned the trial court for resentencing pursuant to

section 1172.6 of the Penal Code.1 The trial court denied the petition at the prima facie

stage after determining defendant was ineligible for relief because there was “substantial

evidence” in the record that he could be found guilty of murder beyond a reasonable

doubt as a major participant who acted with reckless indifference to human life in a home

invasion robbery that resulted in death, a still-valid theory of murder.

On appeal, defendant contends the trial court applied an incorrect legal standard

and therefore erred by denying his facially sufficient petition. He further contends the

court impermissibly engaged in judicial factfinding at the prima facie stage.

Alternatively, to the extent his claims are barred by issue preclusion, defendant asserts

ineffective assistance of counsel.

The Attorney General concedes the trial court erred by denying the petition at the

prima facie stage because the record fails to show defendant ineligible for resentencing as

a matter of law. The Attorney General agrees with defendant that the matter must be

remanded to the trial court with instructions to proceed to an evidentiary hearing under

section 1172.6, subdivision (d).

The Kings County District Attorney’s Office (KCDA) filed an application for

permission to file an amicus brief in support of neither party, which we granted. The

KCDA disagrees with the Attorney General’s concessions. In its amicus brief, the KCDA

argues a remand is not warranted because the record of conviction establishes defendant

was a major participant in the underlying felony and acted with reckless indifference to

human life. As such, the KCDA urges us to affirm the order denying the petition.

1 Undesignated statutory references are to the Penal Code. Former section 1170.95

was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)

We refer to the current section 1172.6 in this opinion.

2.

Alternatively, the KCDA requests that we remand the matter for a rehearing at the

prima facie stage.

For the reasons stated below, we agree with defendant and the Attorney General

that the trial court erred in denying defendant’s resentencing petition at the prima facie

stage. We reverse the order and remand the matter to the trial court with instructions to

proceed to an evidentiary hearing under section 1172.6, subdivision (d).

FACTUAL AND PROCEDURAL BACKGROUND

Charges

A first amended information charged defendant and Ramon Avila2 with

first degree murder (§ 187, subd. (a); count 1), attempted murder (§§ 664/187, subd. (a);

count 2), robbery (§ 211; count 3), conspiracy to commit robbery (§ 182, subd. (a)(1);

count 4), residential burglary (§ 459; count 5), conspiracy to commit burglary (§ 182,

subd. (a)(1); count 6), and street terrorism (§ 186.22, subd. (a); count 7). As to count 1, it

was alleged that the murder was committed while defendant and his codefendants

committed a robbery (§ 190.2, subd. (a)(17)(A)) and burglary (§ 190.2, subd. (a)(17)(G)),

and that the murder was committed to further the activities of a criminal street gang

(§ 190.2, subd. (a)(22)). As to counts 1 through 3, it was further alleged that a principal

discharged a firearm causing great bodily injury (§ 12022.53, subds. (d), (e)(1)). It was

also alleged as to counts 1 through 7 that defendant had a prior serious felony conviction

(§ 667, subd. (a)) that also qualified as a prior “strike” conviction within the meaning of

the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).

2 Prior charging documents named other codefendants, including Carlos Osuna and

Omar Marrujo.

3.

Preliminary Hearing Evidence3

On September 16, 2014, defendant sent a text message to Osuna, stating, “ ‘You

ready to do a lick?’ ” A “lick” is a common term for robbery. Defendant also sent

Osuna’s phone number to someone saved as “Omar 11” in his phone.

That same day, at approximately 10:00 p.m., C.M. heard his dogs barking and

exited his home. C.M. was confronted by four armed individuals. One individual

pointed an assault rifle at C.M. and ordered him to get on the ground in English. This

individual was described as “fat” and wearing green colored pants and a tan shirt with a

black mask. Another individual was holding a handgun and translated the orders into

Spanish, telling C.M. to do exactly as he was told or he would be shot. This individual

was described as “skinnier” than the first and was wearing a dark shirt, dark or “possibly

blue” pants, and a blue hat. C.M. was patted down and his pockets were searched.

One individual stood over C.M. and pointed a rifle at his head, telling him to stay down

or he would be shot in the head.

B.M., C.M.’s father, heard the commotion and went outside. The individuals

pushed B.M. and C.M. back into their house and onto the floor. G.M., C.M.’s mother,

came out from the bedroom and was forced onto the floor. Three individuals went

through the house and searched for items to take while one watched over the residents.

That individual told them, “ ‘Don’t move or I’ll blow your head off.’ ” Two “money

orders” totaling $320 were taken.

Nearby, a neighbor, J.R., heard commotion and saw “figures” running around

outside. J.R. went into his backyard where he met and told his son, E.R., that someone

was breaking into the house next door. E.R. retrieved a .22-caliber rifle from a back shed

and fired six shots into the air to scare the individuals away. J.R. took the rifle away from

3 The factual background is taken from the preliminary hearing transcript, which the

trial court relied upon in assessing defendant’s section 1172.6 petition.

4.

E.R. E.R. saw defendant jump the neighbor’s fence and come toward E.R. in J.R.’s

backyard. E.R. told defendant to get on the ground. Refusing to get on the ground,

defendant pointed a rifle at E.R., and yelled, “ ‘DEA, DEA,’ ” before running toward

another portion of the property, throwing his rifle on the ground, and jumping back over

the fence. E.R. later found the rifle and prescription glasses in the area where he saw

defendant climb over the fence.

Shortly after 10:00 p.m., J.R. called his daughter, Z.R., said, “ ‘Call the police,’ ”

and hung up. Z.R. and her husband, Oscar Ocampo, then drove to J.R.’s home to see

what was happening. J.R. approached Z.R. and Ocampo as they arrived. He told them

that people were breaking into the house next door. Z.R. started to hear gunshots. As

J.R. was walking towards the front of his house, an individual approached and shot him

in the leg.

Ocampo got back into the vehicle and drove towards the sound of the gunshots.

Z.R. observed Ocampo “chasing” an individual who was running away holding a rifle.

She described this person as “short and stocky,” wearing a dark hooded sweatshirt and

dark colored pants. Z.R. heard a single gunshot and ran to Ocampo’s vehicle. She found

Ocampo with a fatal gunshot wound to the head.

Early the next day, a different neighbor found defendant hiding in the bushes. At

defendant’s request, the neighbor drove defendant to a train station. Surveillance footage

from the train station captured defendant exiting the neighbor’s vehicle. Defendant’s

grandmother picked him up from the train station. She noticed defendant, who normally

wore prescription glasses, did not have his glasses. Defendant told her he had lost them

while fighting in Corcoran the night before.

Defendant used his grandmother’s cell phone to send text messages to his

girlfriend and explain why he was out all night. Defendant told her, “ ‘We’ve been

smashing through this town all night.’ ” Among other things, he mentioned throwing a

5.

“chop,” which is a common slang term for an assault rifle. He also texted her: “ ‘I need

a blunt. I need to smoke a blunt. [¶] … [¶] I think I got two of dem tho.’ ”

Law enforcement recovered an “AR-15” assault rifle which E.R. found in J.R.’s

backyard about 150 yards away from where Ocampo was fatally shot. The rifle was sent

to the Department of Justice for testing, which revealed the rifle had been converted from

a semiautomatic to a fully automatic rifle. The rifle was loaded with 24 rounds of

ammunition in the magazine and one live round in the chamber. The rifle also appeared

to have a silencer on the muzzle, but it may not have been a functioning silencer. The

pair of glasses E.R. found in J.R.’s backyard the night of the shooting contained

defendant’s DNA.

Plea

On July 31, 2017, defendant pled no contest to first degree murder, and admitted

the murder was committed in the perpetration or attempt to perpetrate a robbery and

burglary. Defendant admitted that a principal personally used a firearm under

section 12022.53, subdivision (b). The remaining counts and allegations were

dismissed.4 The trial court sentenced defendant to 25 years to life, plus 10 years for the

firearm enhancement.

Resentencing Proceedings

On December 4, 2023, defendant filed a petition for resentencing under

section 1172.6. He checked boxes on a preprinted form stating an information was filed

against him 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; he accepted a plea offer in lieu of a trial at which he could have been convicted of

4 The attempted murder count was dismissed with a Harvey waiver (People v.

Harvey (1979) 25 Cal.3d 754).

6.

murder; and he could not presently be convicted of murder because of changes made to

sections 188 and 189, effective January 1, 2019.

The trial court appointed counsel to represent defendant later that month.

Defendant later substituted his counsel in February 2024. On February 21, 2024, the

KCDA filed an opposition to defendant’s resentencing petition. Defendant filed a reply

on March 22, 2024. In his reply, defendant argued he had made a prima facie case for

relief because the record contains “substantial evidence” that he was not the actual killer

and that he did not act with reckless indifference to human life. Attached to his reply

were pages from a police report, and his counsel’s declaration concerning evidence which

could be presented at an evidentiary hearing. On April 17, 2024, the KCDA filed a

supplemental opposition and, among other things, objected to the admissibility of the

police report attached in defendant’s reply.

On April 23, 2024, the trial court held a status conference. The court’s minute

order showed “[d]iscussions [were] held.” The court continued the matter for the parties

to “review the file” and set the prima facie hearing for May 10, 2024. On May 1, 2024,

defendant’s counsel filed a supplemental reply.

Following another continuance, on June 7, 2024, the trial court held the

prima facie hearing. At the hearing, the court summarized the record of conviction,

noting defendant and others accomplished a home invasion robbery, and that defendant

had texted his codefendant to “ ‘[b]e ready to do a lick’ ” the day prior to the robbery.

Defendant’s counsel argued “our main position is that we don’t believe that [defendant]

acted with reckless indifference to human life.” The court stated:

“All right. So, as indicated, the defendant texted his soon-to-be

coparticipant in this home invasion robbery. The four participants,

including the defendant, entered the victims’ home all at the same time.

Each took control of a particular part of the residence in a coordinated

fashion. The defendant was personally armed with a fully automatic rifle, a

large capacity magazine, 27 rounds, that was actually specifically witnessed

by the victims. Each participant, including the defendant, acted in the

7.

commission of the robbery inside the home. One stood tower over the

victims in this matter as they were held at gunpoint. The three others went

throughout the house to accomplish the robbery.”

The trial court denied defendant’s resentencing petition. In doing so, the court

stated:

“The Court is going to find that there is substantial evidence that the

defendant was a major participant and acted with reckless disregard. The

weapon he armed himself with was an automatic weapon with a large

capacity magazine, one pull of the trigger would unleash those 27 rounds.

His actions, as indicated, demonstrate to this Court substantial evidence that

he was throughout this robbery acting with reckless indifference to human

life, the manner in which the robbery was carried out, the type of weapon

he armed himself with and his personal conduct.

“Since the Court has found that the record of conviction contains

substantial evidence that [defendant] could be found guilty of murder

beyond a reasonable doubt under current law, [defendant] has failed to

carry the burden of making a prima facie showing of eligibility for relief

and the petition must be denied.”

Defendant filed a timely notice of appeal.

DISCUSSION

Defendant contends the trial court’s order denying his section 1172.6 resentencing

petition must be reversed because his record of conviction does not establish he was

ineligible for relief as a matter of law. He argues the court applied the incorrect legal

standard in reaching its conclusion that he failed to make a prima facie showing of

eligibility for relief. He further argues the court engaged in judicial factfinding and

credibility determinations at the prima facie stage. The Attorney General concedes the

issues. Defendant requests, as does the Attorney General, that we remand the matter to

the trial court with instructions to proceed to an evidentiary hearing under section 1172.6,

subdivision (d).

In its amicus brief, the KCDA contends that defendant’s petition was properly

denied at the prima facie stage. Though the KCDA concedes the trial court’s use of the

“substantial evidence” standard was in error, the KCDA nonetheless requests that we

8.

affirm the order denying defendant’s petition because the record conclusively established

defendant was a major participant in the underlying felony who acted with reckless

indifference to human life. Alternatively, in the event we determine a remand is

necessary, the KCDA urges us to remand for a rehearing at the prima facie stage.

Legal Principles and Standard of Review

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

“amend[ed] the felony murder rule and the natural and probable consequences doctrine

… to ensure that murder liability is not imposed on a person who is not the actual killer,

did not act with the intent to kill, or was not a major participant in the underlying felony

who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,

subd. (f); see People v. Lewis (2021) 11 Cal.5th 952, 967 (Lewis).) “As part of these

ameliorative changes, malice, a key element the People must prove in a murder

prosecution, may no longer be imputed to a defendant solely because the defendant

participated in another crime.” (People v. Patton (2025) 17 Cal.5th 549, 558 (Patton).)

“Defendants who were neither actual killers nor acted with the intent to kill can be held

liable for murder only if they were ‘major participant[s] in the underlying felony and

acted with reckless indifference to human life, as described in subdivision (d) of …

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

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

Through the creation of section 1172.6, the Legislature “offered relief to those

convicted under certain homicide theories, such as murder or attempted murder under the

natural and probable consequences doctrine, whose convictions are now tainted.”

(Patton, supra, 17 Cal.5th at p. 556.) “Petitioners seeking relief under section 1172.6

must, first, file a facially valid petition that states the statutory requirements for relief (id.,

subd. (b)), and second, make a ‘prima facie showing’ (id., subd. (c)), before a court must

issue an order to show cause and hold an evidentiary hearing on the ultimate question of

9.

resentencing at which the People will bear the burden of defending a conviction under the

amended law (id., subd. (d)).” (Patton, at p. 556.)

In the first step, “[a] petition that includes ‘[a] declaration by petitioner that the

petitioner is eligible for relief …, based on all the requirements of subdivision (a),’ the

case number and year of the petitioner’s conviction, and whether the petitioner seeks

counsel is facially sufficient and entitles the petitioner to counsel.” (Patton, supra,

17 Cal.5th at pp. 558–559.) “At this initial stage, ‘substantive merit’ is not the question.

[Citation.] This minimal compliance requirement for ‘[a]ppointing counsel’ assures a

petitioner assistance ‘in navigating the[] complex theories’ of murder liability a

section 1172.6 petition implicates that are ‘ “not easily understood by an unrepresented

litigant,” ’ thus promoting the reliability of the petitioning process.” (Id. at p. 562.)

“A facially sufficient petition also triggers the People’s duty to submit a response

and the petitioner’s right to submit a reply on the question of whether a prima facie case

for relief exists.” (Patton, supra, 17 Cal.5th at p. 559.) “ ‘After the parties have had an

opportunity to submit briefings, the court shall hold a hearing to determine whether the

petitioner has made a prima facie case for relief.’ ” (Ibid.) If the petitioner has made a

prima facie case, the court must proceed “to an evidentiary hearing on the ultimate

question of whether petitioner should be resentenced.” (Id. at p. 562.)

At the prima facie stage, “ ‘ “the court takes petitioner’s factual allegations as true

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

relief if [those] factual allegations were proved. If so, the court must issue an order to

show cause.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) “ ‘[I]f 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.) “In reviewing any part of the record of conviction at this

preliminary juncture, a trial court should not engage in ‘factfinding involving the

weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972.) The inquiry in this

10.

stage is “ ‘limited,’ ” but it is not “simply duplicative of the facial inquiry.” (Patton,

supra, 17 Cal.5th at p. 562, fn. omitted.) “ ‘The record of conviction will necessarily

inform the trial court’s prima facie inquiry …, allowing the court to distinguish petitions

with potential merit from those that are clearly meritless.’ ” (Id. at p. 563.) This

procedure 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’ without the need for an evidentiary

hearing.” (Patton, at p. 563; see Lewis, at p. 972 [“[T]he ‘prima facie bar was

intentionally and correctly set very low.’ ”].) “ ‘If the petition and record in the case

establish conclusively that the defendant is ineligible for relief, the trial court may

dismiss the petition.’ ” (People v. Curiel (2023) 15 Cal.5th 433, 450.) “ ‘ “This is a

purely legal conclusion, which we review de novo.” ’ ” (People v. Lopez (2022)

78 Cal.App.5th 1, 14.)

Analysis

All parties agree, as do we, that the trial court used an incorrect legal standard to

deny the petition at the prima facie stage. The court erred by applying the “substantial

evidence” standard in concluding defendant was ineligible for relief. The statute does not

permit a court to deny a petition at the prima facie stage based on a determination that

substantial evidence shows defendant is ineligible for relief.5 (§ 1172.6, subd. (c).)

Instead, at this stage, the defendant need only make “a prima facie case for relief.” (Ibid.)

In this inquiry, “ ‘ “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.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.)

5 Moreover, in subdivision (d)(3) of section 1172.6, which addresses the evidentiary

hearing, the statute makes clear: “A finding that there is substantial evidence to support a

conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond

a reasonable doubt, that the petitioner is ineligible for resentencing.”

11.

The KCDA argues that, regardless of the trial court’s use of an incorrect standard,

the petition was properly denied at the prima facie stage because the record of conviction

establishes defendant was a major participant in the underlying felony who acted with

reckless indifference to human life. The KCDA’s argument misses the mark. The prima

facie inquiry is limited, and the bar for passing this stage is “ ‘intentionally and correctly

set very low.’ ” (Lewis, supra, 11 Cal.5th at p. 972; see Patton, supra, 17 Cal.5th at

p. 567 [“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.”].)

Whether defendant was a major participant in the underlying felony who acted with

reckless indifference to human life is a determination which must be made beyond a

reasonable doubt. (See People v. Strong, supra, 13 Cal.5th at p.720.) To reach such a

determination at the prima facie stage would require the trial court to engage in

impermissible factfinding. (See Lewis, at p. 972 [noting a trial court should not engage in

factfinding involving the weighing of evidence]; see also In re Scoggins (2020) 9 Cal.5th

667, 683 [“Determining a defendant’s culpability under [section 190.2, subdivision (d)]

requires a fact-intensive individualized inquiry.”].)

In making this argument, the KCDA highlights facts from the preliminary hearing

transcript upon which the trial court relied. The KCDA asserts: “While there were

disputes as to the interpretation of some of the evidence, the evidence on which the lower

court relied—and thus what was ‘material’—for its denial was undisputed.” However, a

dispute as to the interpretation of the evidence plainly suggests an evidentiary hearing

was warranted. (Patton, supra, 17 Cal.5th at p. 567 [“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”].)

The Supreme Court’s recent opinion in Patton is instructive. In Patton, the

defendant was charged with premeditated attempted murder among other offenses.

(Patton, supra, 17 Cal.5th at p. 557.) At the preliminary hearing, several still photos

12.

taken from surveillance video were received into evidence. (Ibid.) The photos depicted a

shooter firing his gun at a victim. (Ibid.) A police officer who was familiar with the

defendant from previous encounters identified him as the shooter, and another officer

testified the shooter was wearing jeans matching those the defendant was wearing in a

photograph police later acquired. (Ibid.) The defendant eventually pleaded no contest to

attempted murder. (Ibid.) When the defendant filed a petition for resentencing under

section 1172.6, he checked boxes next to statements on a preprinted form asserting he

could not presently be convicted of attempted murder based on the changes to the law on

homicide. (Id. at p. 559.) After deeming the petition facially sufficient and appointing

counsel, the trial court denied the petition at the prima facie stage. (Id. at pp. 559–560.)

The Supreme Court in Patton clarified the extent to which the trial court may use

the preliminary hearing transcript at the prima facie stage. (Patton, supra, 17 Cal.5th at

p. 568.) The Supreme Court held that a trial court may “rely on unchallenged,

relief-foreclosing facts within a preliminary hearing transcript to refute conclusory,

checkbox allegations” in a petition at the prima facie stage. (Id. at p. 564.) According to

the Patton court, to accept facts from the record of conviction which are undisputed over

contrary legal allegations “is not ‘ “factfinding involving the weighing of evidence or the

exercise of discretion.” ’ ” (Id. at pp. 565–566.) Therefore, “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, thereby, made a prima facie showing.” (Id. at p. 565.)

Here, by contrast, the preliminary hearing transcript did not establish defendant

was the direct perpetrator. (See Patton, supra, 17 Cal.5th at p. 569 [“statements within

Patton’s preliminary hearing transcript contributed specific factual assertions about his

conviction—namely, that it was premised on him being the sole shooter”].) Instead, the

preliminary hearing transcript established defendant was one of four individuals involved

13.

in the underlying felony, an armed robbery of a home, which resulted in the murder of

Ocampo. But the record does not foreclose the possibility that one of the other

three individuals was the direct perpetrator. That possibility arises from the testimony

provided at the preliminary hearing, not speculation “conjured from thin air.” (Patton, at

p. 567.) Accordingly, unlike in Patton, the record of conviction here did not refute the

allegations in defendant’s resentencing petition.

The KCDA notes that, if it is improper to decide at the prima facie stage whether

defendant was a major participant who acted with reckless indifference, a petition by a

defendant prosecuted under this rubric of culpability could never be denied at the

prima facie stage. The KCDA appears to misunderstand the purpose of the prima facie

stage. The prima facie inquiry allows a court to distinguish petitions with “potential

merit” from those that are “clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.) The

court can efficiently address a clearly meritless petition at this stage. (Ibid.; see Patton,

supra, 17 Cal.5th at p. 566 [“The ultimate question at the prima facie stage is whether to

proceed to an evidentiary hearing.”].) However, the bar to move past the prima facie

stage is “ ‘very low.’ ” (Lewis, at p. 972.) We conclude only that defendant met this very

low bar.6 Accordingly, although the KCDA further argues the preliminary hearing

transcript establishes defendant was a major participant in the underlying felony and

acted with reckless indifference to human life under California Supreme Court

precedents, we decline to reach this determination as it would necessarily involve

improper factfinding.

We conclude defendant made a prima facie showing of eligibility, and the trial

court erred by concluding otherwise.7 The order denying defendant’s section 1172.6

6 We express no opinion on the ultimate resolution of defendant’s petition after an

evidentiary hearing on remand.

7 Although the KCDA alternatively urges us to remand for a rehearing at the

prima facie stage, we decline to do so. The trial court reached a determination about

14.

petition is vacated, and the matter is remanded for the court to issue an order to show

cause and proceed to an evidentiary hearing.

DISPOSITION

The trial court’s order denying defendant’s section 1172.6 petition is reversed and

the matter is remanded. The trial court is directed to issue an order to show cause and

proceed to an evidentiary hearing under section 1172.6, subdivision (d).

HARRELL, J.

WE CONCUR:

HILL, P. J.

MEEHAN, J.

whether defendant carried his burden of showing a prima facie case of eligibility for

relief and we conducted a de novo review of the trial court’s determination. We see no

cause to remand for a rehearing on the prima facie determination.

15.