Unreported / Non-Citable
Background
Efrain Velasquez is serving a life sentence for first degree murder. On July 5, 2002, the Kings County District Attorney charged him and a codefendant with murdering Ramon Rodriguez and alleged firearm, gang and special-circumstance allegations. On April 2, 2003, pre-preliminary hearing, Velasquez entered a no-contest plea to first degree murder, and all other allegations were stricken. The plea recited that he unlawfully killed Rodriguez with malice aforethought and that the murder was willful, deliberate and premeditated. Counsel stipulated to a factual basis under People v. West, but the plea transcript did not itself supply an underlying factual narrative.
Velasquez petitioned for resentencing on December 16, 2022 under Penal Code section 1172.6, formerly section 1170.95. After counsel was appointed, the superior court considered whether he had made a prima facie showing. On May 19, 2025, it denied the petition, reasoning that the record of conviction established the admitted elements of premeditated murder and that the police reports were not part of that record and could not be considered as hearsay without a stipulation. The court distinguished People v. Romero because Romero involved a post-preliminary-hearing plea and a stipulated preliminary-hearing factual basis, but nevertheless found Velasquez’s own plea admissions dispositive. Velasquez filed a timely appeal on June 3, 2025.
The Court’s Holding
The Court of Appeal affirmed. It explained that Senate Bill 1437 narrowed felony-murder liability and eliminated murder liability based solely on imputed malice, including the natural and probable consequences doctrine. Section 1172.6 permits an eligible petitioner to seek vacatur and resentencing, but a trial court may deny the petition at the prima facie stage when the petition and record conclusively establish ineligibility. Otherwise, the court must issue an order to show cause and ordinarily proceed to an evidentiary hearing where the prosecution bears the burden of proof.
Relying on Romero, the court held that Velasquez’s admission to intentional, deliberate and premeditated murder established actual malice sufficient to sustain his conviction under the amended law. It rejected his reliance on People v. Curiel, explaining that Curiel involved jury instructions permitting conviction under natural and probable consequences and uncertainty about whether the jury made all findings necessary for a currently valid theory. Velasquez’s case instead ended in a plea, with no such instruction or record indication that his conviction rested on that doctrine. The court also held that the West plea made no difference to use of the resulting conviction.
The court distinguished People v. Rivera, where the defendant made no admission beyond a no-contest plea to the charged count and the parties stipulated to second degree murder. Velasquez’s additional admission of premeditation separated his case from generic or second degree murder and precluded relief. In a footnote, the court declined to follow People v. Eynon to the extent it was comparable because Eynon predated Romero. The May 19, 2025 denial was affirmed; the opinion did not order an order to show cause or an evidentiary hearing.
Key Takeaways
- A no-contest plea to first degree murder that includes willfulness, deliberation and premeditation can conclusively establish actual malice for section 1172.6 eligibility purposes.
- The court treated the plea admissions, rather than police reports outside the record of conviction, as the decisive basis for denying a prima facie showing.
- Curiel’s warning that intent to kill alone may not establish every element of a valid murder theory did not control this plea-based case without a natural-and-probable-consequences instruction or verdict.
- The absence of a conventional factual-basis narrative in a West plea did not prevent the appellate court from relying on the conviction and express plea admissions.
- Rivera was distinguishable because Velasquez admitted premeditated first degree murder rather than merely entering a plea to a generic murder charge.
Why It Matters
The decision applies the Fifth District’s Romero rule to a pre-preliminary-hearing West plea and clarifies that the lack of a stipulated evidentiary factual narrative does not neutralize express admissions in the plea itself. It frames the dispositive inquiry as whether the record of conviction conclusively establishes a currently valid basis for murder liability, not whether every murder plea containing malice language automatically defeats resentencing.
The opinion also limits Curiel’s application in this procedural setting: the concern about incomplete jury findings does not arise merely because a petitioner invokes malice’s status as only one element. The unpublished decision affirms denial at the prima facie stage and leaves Velasquez’s conviction and life sentence undisturbed.