People v. Herrera CA6

Filed 8/21/25 P. v. Herrera CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H051745 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. F26219)

v.

DAMIAN ALEX HERRERA,

Defendant and Appellant.

In 2015, Damian Alex Herrera pleaded guilty to attempted murder of a member of a rival gang and was sentenced to 35 years in prison. In 2022, Herrera petitioned for resentencing under what is now Penal Code section 1172.6, hoping to take advantage of new restrictions on imputing malice for murder or attempted murder. (Subsequent undesignated statutory references are to the Penal Code.) The trial court denied the petition, ruling, based on the preliminary hearing transcripts, that Herrera had failed to make out a prima facie case for relief. On appeal, Herrera challenges the trial court’s use of preliminary hearing transcripts. In light of the California Supreme Court’s recent decision in People v. Patton (2025) 17 Cal.5th 549 (Patton), we reject this challenge and affirm.

I. BACKGROUND Because Herrera pleaded guilty prior to trial, we derive the facts recounted below from the preliminary hearing transcripts. We also grant Herrera’s request, filed September 30, 2024, to take judicial notice of those transcripts and of his direct appeal. A. The Shooting Herrera was a member of a Norteño gang. On April 19, 2013, he went to a party with three friends, including his girlfriend Giavanna Kristi Hagio and Juan Manuel Castillo. There, Herrera saw Alberto Solis, a member of a rival Sureño gang who was a “green light” and previously had been shot by Norteño gang members. After leaving the party, Herrera exchanged words with Solis, who ran into a nearby apartment. Herrera drove away, retrieved a shotgun, and returned to a parking lot near where the party had been held. Herrera encountered Solis and several others, who yelled at Herrera. Then, Herrera took two steps forward, raised a shotgun to hip height, and without aiming fired a single blast. The blast struck Solis in the head, neck and shoulders and another person, Sylvia Cruit, in the face, eyes, and throat. B. The Prosecution 1. The Charges In 2015, Herrera was charged with attempting to murder Solis. The charge included special allegations that Herrera acted “willfully, deliberately, and with premeditation” and that he personally and intentionally discharged a firearm causing Solis great bodily injury. Herrera was also charged with mayhem against Cruit, assault with a deadly weapon, street terrorism, and possession of a firearm by a felon. Hagio and Castillo were charged as well, Hagio with being an accessory after the fact and Castillo with attempted murder, mayhem, and other crimes. 2. Preliminary Hearing At the preliminary hearing the prosecution presented both eyewitness testimony and testimony from investigators who, among other things, interviewed Solis and Hagio. 2