# People v. Sarabia CA5

> California Court of Appeal · January 27, 2026

URL: https://www.frixlaw.com/law-library/cases/11246662

## Case

- **Court:** California Court of Appeal
- **Decided:** January 27, 2026
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

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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.

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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

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“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).

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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

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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

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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

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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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11246662. Public record. Not legal advice.