People v. Herrera CA6
H051745M
| Cal. Ct. App. | Aug 22, 2025Background
- Damian Alex Herrera, a Norteño gang member, pleaded guilty in 2015 to attempted murder (of Alberto Solis, a rival gang member) and mayhem (against Sylvia Cruit), admitting to personally discharging a firearm.
- The underlying facts, as determined from the preliminary hearing, showed Herrera fired a shotgun at Solis following a gang-related confrontation, resulting in injuries to Solis and Cruit.
- In 2022, Herrera petitioned for resentencing under Penal Code section 1172.6, based on changes that limited liability theories for murder/attempted murder to direct involvement.
- The trial court denied the petition, relying on preliminary hearing evidence that Herrera was the sole shooter acting with direct malice.
- Herrera appealed, arguing improper reliance on the preliminary hearing transcript and asserting potential eligibility for resentencing under now-abrogated theories of imputed malice.
Issues
| Issue | Herrera's Argument | People's Argument | Held |
|---|---|---|---|
| Use of preliminary hearing transcript at prima facie stage | Should not be used to deny prima facie relief | Permissible to determine theory of prosecution | Court may use transcript for this purpose |
| Whether Herrera made a prima facie case for resentencing | Prosecution may have used imputed malice theory | Evidence and charges all supported direct liability theory | No prima facie case for resentencing |
| Applicability of amended Penal Code sections 188 and 189 | Changes made prior theory of conviction invalid | Conviction still valid as direct liability for attempted murder | Changes did not apply to facts of conviction |
| Need for evidentiary hearing if petition is conclusory | Should have had an opportunity for evidentiary hearing | No evidentiary dispute; only direct responsibility was charged | No evidentiary hearing warranted |
Key Cases Cited
- People v. Patton, 17 Cal.5th 549 (Cal. 2025) (preliminary hearing transcripts may be used at the prima facie stage to determine prosecution theory in resentencing petitions)
- People v. Lewis, 11 Cal.5th 952 (Cal. 2021) (courts may consider the record of conviction at prima facie stage, but not engage in factfinding)
- People v. Strong, 13 Cal.5th 698 (Cal. 2022) (describing procedural requirements and legislative history for resentencing under amended Penal Code)
- People v. Gentile, 10 Cal.5th 830 (Cal. 2020) (explains the natural and probable consequences doctrine and its statutory supersession)