People v. Verdugo

Filed 1/15/20
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B296630

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA245638-03)
v.

NICK VERDUGO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed.
Allison H. Ting, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey and Idan Ivri,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
 Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (SB 1437), effective January 1, 2019, amended the
felony murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder. SB 1437 also
1
permits, through new Penal Code section 1170.95, an individual
convicted of felony murder or murder under a natural and
probable consequences theory to petition the sentencing court to
vacate the conviction and be resentenced on any remaining
counts if he or she could not have been convicted of murder
because of SB 1437’s changes to the definition of the crime.
Section 1170.95, subdivision (b), prescribes the information that
must be included in the petition. Section 1170.95, subdivision (c),
requires the sentencing court to review the petition; determine if
it makes a prima facie showing the petitioner falls within the
provisions of section 1170.95; and, “[i]f the petitioner has
requested counsel, . . . appoint counsel to represent the
petitioner.” After counsel has been appointed, the prosecutor is
to file and serve a response to the petition; and the petitioner
may file a reply. If the petitioner has made a prima facie
showing he or she is entitled to relief, the court must issue an
order to show cause (§ 1170.95, subd. (c)) and conduct a hearing
to determine whether to vacate the murder conviction and
resentence the petitioner on any remaining counts (§ 1170.95,
subd. (d)(1)).
Nick Verdugo contends section 1170.95, subdivision (c),
mandates the appointment of counsel whenever, as here, a
“facially sufficient petition” has been filed—that is, one that
contains the basic averments required by subdivision (b)(1)(A),

1
Statutory references are to this code.

2
(B) and (C)—and argues the superior court erred in summarily
denying his petition without appointment of counsel. However,
the relevant statutory language, viewed in context, makes plain
the Legislature’s intent to permit the sentencing court, before
counsel must be appointed, to examine readily available portions
of the record of conviction to determine whether a prima facie
showing has been made that the petitioner falls within the
provisions of section 1170.95—that is, a prima facie showing the
petitioner may be eligible for relief because he or she could not be
convicted of first or second degree murder following the changes
made by SB 1437 to the definition of murder in sections 188 and
189. Accordingly, we reject Verdugo’s argument the superior
court lacked jurisdiction to deny his section 1170.95 petition on
the merits without first appointing counsel and allowing the
prosecutor and appointed counsel to brief the issue of his
entitlement to relief and affirm the court’s summary denial of
Verdugo’s petition, which was properly based on its ruling
Verdugo was ineligible for relief as a matter of law.
FACTUAL AND PROCEDURAL BACKGROUND
Verdugo was convicted in 2006 following a jury trial of first
degree murder (§§ 187, subd. (a), 189), conspiracy to commit
murder (§§ 182, subd. (a)(1), 187) and two other felonies. The
jury also found true special firearm-use and criminal street gang
enhancement allegations. Verdugo was sentenced to an
aggregate state prison term of 57 years 8 months to life. We
affirmed the convictions on appeal but modified Verdugo’s
sentence to correct several unauthorized provisions. (People v.
Barraza (June 17, 2008, B194415) [nonpub. opn.].)
On January 16, 2019 Verdugo petitioned for sentencing
relief under SB 1437. He utilized a downloadable form

3
petition/declaration prepared by Re:Store Justice, a cosponsor of
the legislation (see Sen. Com. on Public Safety, Rep. on Sen.
Bill No. 1437 (2017-2018 Reg. Sess.) Apr. 24, 2018, p. 1), on which
Verdugo checked boxes 1, 2a and 3, stating, in language
paralleling that of section 1170.95, subdivision (a)(1), (2), and (3),
“A complaint, information, or indictment was filed against me
that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine”; “At trial, I was convicted of 1st or 2nd degree murder
pursuant to the felony murder rule or the natural and probable
consequences doctrine”; and “I could not now be convicted of 1st
or 2nd degree murder because of changes made to Penal Code
§§ 188 and 189, effective January 1, 2019.” Verdugo also checked
box 4, requesting the court appoint counsel for him during the
2
resentencing process.
Verdugo’s petition attached a copy of an 18-page document
that appears to be an almost-final version of the jury instructions
used by the court at Verdugo’s joint trial with codefendant
3
Bryant Barraza. Included among the instructions are CALJIC

2
A copy of the petition form provided on the Re:Store Justice
website, identical to the one used by Barraza, is attached as an
appendix to this opinion. (See SB 1437 Petition – Re:Store
Justice [as of Jan. 15, 2020],
archived at .)
3
Although the document has a handwritten notation, “Final
Jury Instructions,” unlike the jury instructions in the record on
appeal in People v. Barraza, supra, B194415, it is not dated and
signed by the trial judge and does not include the text of CALJIC
No. 3.18, Testimony of Accomplice or Codefendant To Be Viewed
With Care and Caution. However, the language of the

4
Nos. 8.26 and 8.69. CALJIC No. 8.26, as given, stated, “If a
number of persons conspire together to commit willful, deliberate,
and premeditated Murder, and if the life of another person is
taken by one or more of them in the perpetration of, or an
attempt to commit that crime, and if the killing is done in
furtherance of the common design and to further that common
purpose, or is the natural and probable consequence of the
pursuit of that purpose, all of the co-conspirators are equally
guilty of murder in the first degree, whether the killing is
intentional, unintentional, or accidental.” The second paragraph
of this instruction defined the term “natural and probable.”
CALJIC No. 8.69 stated in part, “A conspiracy to commit murder
is an agreement entered into between two or more persons with
the specific intent to agree to commit the crime of murder and
with the further specific intent to commit that murder, followed
by an overt act committed in this state by one or more of the
parties for the purpose of accomplishing the object of the
agreement. Conspiracy is a crime. [¶] The crime of conspiracy to
commit murder requires proof that the conspirators harbored
express malice aforethought, namely, the specific intent to kill
unlawfully another human being.”
There were no other attachments to the petition, and
Verdugo submitted no other information regarding his conviction
for first degree murder.
The matter was called on January 24, 2019. Verdugo was
not present. The court summarily denied the petition “as
petitioner is not entitled to relief as a matter of law.” The court’s

instructions quoted in our opinion regarding conspiracy to
commit murder is identical to that in the draft instructions
attached to Verdugo’s petition.

5
minute order explained, “Besides first degree murder, petitioner
was convicted of conspiracy to commit murder, a crime requiring
express malice. In addition, the appellate opinion affirming the
petitioner’s conviction and sentence reflects that the petitioner
was convicted as a direct aider and abettor, with malice
aforethought, and not on a theory of felony murder of any degree
or a theory of natural and probable consequences.”
DISCUSSION
1. SB 1437 and the Right To Petition To Vacate Certain
Prior Convictions for Murder
a. Statutory changes relating to accomplice liability for
murder
On September 30, 2018 the Governor signed SB 1437,
which, effective January 1, 2019, amended Penal Code
sections 188 and 189, significantly modifying the law relating to
accomplice liability for murder. In its uncodified findings and
declarations the Legislature stated, “It is necessary to amend the
felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, 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).) The Legislature also
declared, “Except as stated in subdivision (e) of Section 189 of the
Penal Code [relating to first degree felony murder], a conviction
for murder requires that a person act with malice aforethought.
A person’s culpability for murder must be premised upon that
person’s own actions and subjective mens rea.” (Id., § 1,
subd. (g).)

6
 To effectuate this legislative purpose, SB 1437 added a
crucial limitation to section 188’s definition of malice for purposes
4
of the crime of murder. New section 188, subdivision (a)(3),
provides, “Except as stated in subdivision (e) of Section 189, in
order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice shall not be imputed to a
5
person based solely on his or her participation in a crime.”
New section 189, subdivision (e), in turn, provides with
respect to a participant in the perpetration or attempted
perpetration of a felony listed in section 189, subdivision (a), in
which a death occurs—that is, as to those crimes that provide the
basis for the charge of first degree felony murder—that the
individual is liable for murder “only if one of the following is
proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer in the commission of
murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless

4
Section 187 defines murder as “the unlawful killing of a
human being, or a fetus, with malice aforethought.”
5
Prior to enactment of SB 1437, section 188, subdivision (a),
provided, “For purposes of Section 187, malice may be express or
implied. [¶] (1) Malice is express when there is manifested a
deliberate intention to unlawfully take away the life of a fellow
creature. [¶] (2) Malice is implied when no considerable
provocation appears, or when the circumstances attending the
killing show an abandoned and malignant heart.”

7
indifference to human life, as described in subdivision (d) of
6
Section 190.2.”
b. Petitions to vacate prior convictions for felony murder
or murder under the natural and probable
consequences doctrine
SB 1437 also added section 1170.95 to the Penal Code,
which permits an individual convicted of felony murder or
murder under a natural and probable consequences theory to
petition the sentencing court to vacate the conviction and to be
resentenced on any remaining counts if he or she could not have
been convicted of first or second degree murder because of
SB 1437’s changes to sections 188 and 189. (§ 1170.95, subd. (a).)
Section 1170.95 provides a petition for relief must include: “(A) A
declaration by the petitioner that he or she is eligible for relief
under this section, based on all the requirements of
subdivision (a). [¶] (B) The superior court case number and year
of the petitioner’s conviction. [¶] (C) Whether the petitioner
requests the appointment of counsel.” (§ 1170.95, subd. (b)(1).)
The petition must be filed in the sentencing court and served by
the petitioner on the prosecutor and the attorney who

6
The conditions for imposing liability for first degree felony
murder specified in section 189, subdivision (e), do not apply to a
participant in one of the enumerated felonies when the victim is a
peace officer who was killed while in the course of his or her
duties when the defendant knew or reasonably should have
known that the victim was a peace officer engaged in the
performance of his or her duties. (See § 189, subd. (f).)

8
represented him or her in the trial court or the county public
7
defender.
If any of the required information is missing and cannot be
readily ascertained by the court, “the court may deny the petition
without prejudice to the filing of another petition and advise the
petitioner that the matter cannot be considered without the
missing information.” (§ 1170.95, subd. (b)(2).)
If the petition contains all required information,
section 1170.95, subdivision (c), prescribes a two-step process for
the court to determine if an order to show cause should issue:
“The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section. If the petitioner has
requested counsel, the court shall appoint counsel to represent
the petitioner. The prosecutor shall file and serve a response . . .
and the petitioner may file and serve a reply . . . . If the
petitioner makes a prima facie showing that he or she is entitled
to relief, the court shall issue an order to show cause.”
Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) If the prosecutor
does not stipulate to vacating the conviction and resentencing the
petitioner (§ 1170.95, subd. (d)(2)), the People have the
opportunity to present new and additional evidence at the
hearing to demonstrate the petitioner is not entitled to

7
If the judge who originally sentenced the petitioner is not
available, the presiding judge must designate another judge to
rule on the petition. (§ 1170.95, subd. (b)(1).)

9
resentencing. (§ 1170.95, subd. (d)(3).) The petitioner also has
the opportunity to present new or additional evidence in support
of the resentencing request. (Ibid.)
2. Section 1170.95, Subdivision (c), Authorizes the Court To
Preliminarily Determine Whether the Petitioner Has
Made a Prima Facie Showing of Eligibility for Relief
Under Section 1170.95
As discussed, pursuant to section 1170.95,
subdivision (b)(2), the sentencing court may deny a petition
without prejudice if any of the information required by
subdivision (b)(1) is missing from the petition and cannot be
readily ascertained by the court. This initial review thus
determines the facial sufficiency of the petition. Subdivision (c)
then prescribes two additional court reviews before an order to
show cause may issue, one made before any briefing to determine
whether the petitioner has made a prima facie showing he or she
falls within section 1170.95—that is, that the petitioner may be
eligible for relief—and a second after briefing by both sides to
determine whether the petitioner has made a prima facie
showing he or she is entitled to relief.
The nature and scope of section 1170.95, subdivision (c)’s
second prima facie review, made following a round of briefing by
the prosecutor and counsel for petitioner, is equivalent to the
familiar decisionmaking process before issuance of an order to
show cause in habeas corpus proceedings, which typically follows
an informal response to the habeas corpus petition by the
Attorney General and a reply to the informal response by the
petitioner. (See Cal. Rules of Court, rule 4.551(b).) Indeed, the
standard for subdivision (c)’s second review—“a prima facie
showing that he or she is entitled to relief”—is identical to the
standard for issuance of an order to show cause in a habeas

10
proceeding, as set forth in rule 4.551(c)(1): “The court must issue
an order to show cause if the petitioner has made a prima facie
showing that he or she is entitled to relief. In doing so, 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.
If so, the court must issue an order to show cause.” (See In re
Miranda (2008) 43 Cal.4th 541, 575 [“[i]n issuing an order to
show cause in a habeas corpus proceeding, a court makes ‘“an
implicit preliminary determination”’ as to claims within the order
that the petitioner ‘“has made a sufficient prima facie statement
of specific facts which, if established, entitle him to . . . relief”’”];
People v. Duvall (1995) 9 Cal.4th 464, 475 [“If no prima facie case
for relief is stated, the court will summarily deny the petition. If,
however, the court finds the factual allegations, taken as true,
establish a prima facie case for relief, the court will issue an
OSC.”].)
What then is the court’s role in conducting the first
prima facie review of the petition required by section 1170.95,
8
subdivision (c)? Verdugo’s argument to the contrary
notwithstanding, it must be something more than simply
determining whether the petition is facially sufficient; otherwise
given subdivision (b)(2), this portion of subdivision (c) would be

8
We review de novo questions of statutory construction.
(California Building Industry Assn. v. State Water Resources
Control Bd. (2018) 4 Cal.5th 1032, 1041.) “Our primary task ‘in
interpreting a statute is to determine the Legislature’s intent,
giving effect to the law’s purpose. [Citation.] We consider first
the words of a statute, as the most reliable indicator of legislative
intent.’” (Ibid.)

11
surplusage. It is, of course, our duty in interpreting
section 1170.95 to give meaning to all parts of the statute to the
extent possible. (See Tuolumne Jobs & Small Business Alliance
v. Superior Court (2014) 59 Cal.4th 1029, 1037 [interpretations of
statutes that render words surplusage are to be avoided]; Reno v.
Baird (1998) 18 Cal.4th 640, 658 [“[i]t is a maxim of statutory
construction that ‘[c]ourts should give meaning to every word of a
statute if possible, and should avoid a construction making any
word [or phrase] surplusage’”].) But the pre-briefing
determination whether the petitioner has made a prima facie
showing he or she “falls within the provisions of this section”
must also be different from the post-briefing prima facie showing
the petitioner “is entitled to relief,” required for issuance of an
order to show cause, if only in the nature and extent of materials
properly presented to the court in connection with the second
prima facie step, or else the two prima facie showings specified in
subdivision (c) would be redundant.
The midpoint between section 1170.95, subdivision (b)(2)’s
initial finding the petition is facially sufficient and
subdivision (c)’s second prima facie showing the petitioner is
entitled to relief is a preliminary review of statutory eligibility for
resentencing, a concept that is a well-established part of the
resentencing process under Propositions 36 and 47. (See, e.g.,
People v. Page (2017) 3 Cal.5th 1175, 1188-1189 [Proposition 47];
Teal v. Superior Court (2014) 60 Cal.4th 595, 600 [Proposition
36].) The court’s role at this stage is simply to decide whether the
petitioner is ineligible for relief as a matter of law, making all
factual inferences in favor of the petitioner. (See generally In re
Raymond G. (1991) 230 Cal.App.3d 964, 972 [“‘[p]rima facie

12
evidence is that which suffices for the proof of a particular fact,
until contradicted and overcome by other evidence’”].)
Although subdivision (c) does not define the process by which the
court is to make this threshold determination, subdivisions (a)
and (b) of section 1170.95 provide a clear indication of the
Legislature’s intent. As discussed, subdivision (b)(2) directs the
court in considering the facial sufficiency of the petition to access
readily ascertainable information. The same material that may
be evaluated under subdivision (b)(2)—that is, documents in the
court file or otherwise part of the record of conviction that are
readily ascertainable—should similarly be available to the court
in connection with the first prima facie determination required by
subdivision (c). In particular, because a petitioner is not eligible
for relief under section 1170.95 unless he or she was convicted of
first or second degree murder based on a charging document that
permitted the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine (§ 1170.95, subd. (a)(1), (2)), the court must at least
examine the complaint, information or indictment filed against
the petitioner; the verdict form or factual basis documentation for
a negotiated plea; and the abstract of judgment. Based on a
threshold review of these documents, the court can dismiss any
petition filed by an individual who was not actually convicted of
first or second degree murder. The record of conviction might
also include other information that establishes the petitioner is
ineligible for relief as a matter of law because he or she was
convicted on a ground that remains valid notwithstanding
SB 1437’s amendments to sections 188 and 189 (see § 1170.95,
subd. (a)(3))—for example, a petitioner who admitted being the
actual killer as part of a guilty plea or who was found to have

13
personally and intentionally discharged a firearm causing great
bodily injury or death in a single victim homicide within the
meaning of section 12022.53, subdivision (d). (See People v.
Lewis (Jan. 6, 2020, B295998) __ Cal.App.5th __ [2020 Cal.App.
Lexis 9] [superior court can consider record of conviction in
evaluating the petitioner’s initial prima facie showing under
section 1170.95, subdivision (c)].)
Because the court is only evaluating whether there is a
prima facie showing the petitioner falls within the provisions of
the statute, however, if the petitioner’s ineligibility for
resentencing under section 1170.95 is not established as a matter
of law by the record of conviction, the court must direct the
prosecutor to file a response to the petition, permit the petitioner
(through appointed counsel if requested) to file a reply and then
determine, with the benefit of the parties’ briefing and analysis,
whether the petitioner has made a prima facie showing he or she
is entitled to relief. (Cf. People v. Page, supra, 3 Cal.5th at
9
p. 1189; People v Romanowski (2017) 2 Cal.5th 903, 916.)
That the Legislature intended this three-step evaluation of
a section 1170.95 petition is confirmed by the history of the
legislation. (See Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465,
483-484 [court may look to revisions to a bill during the
enactment process to determine legislative intent].) As

9
In response to the petition the prosecutor may be able to
identify additional material from the record of conviction not
accessible to, or reviewed by, the court during its first prima facie
determination (for example, jury instructions) that establish the
petitioner is not eligible for relief. In a reply the petitioner,
represented by counsel, may rebut the prosecutor’s claim of
ineligibility.

14
introduced, the provision in SB 1437 that permitted a convicted
murderer to request the recall of sentence and resentencing
contemplated only two steps. First, it required the court to
return the petition to the petitioner if information was missing
and to advise the petitioner the matter could not be considered
without the missing information. Second, it directed the court to
10
request various documents from the record of conviction, as well
as concurrently to provide notice to the attorney who represented
the petitioner in the superior court and the district attorney in
the county where the petitioner had been prosecuted
“request[ing] that a response be filed from both parties as to
whether the petitioner is entitled to relief.” (Sen. Bill No. 1437
(2017-2018 Reg. Sess.) as introduced Feb. 16, 2018, § 6.) The
court was required to hold a resentencing hearing if it found
there was “sufficient evidence that the petitioner falls within the
provisions of this section.” (Ibid.)
The next iteration of the bill deleted the initial review of
the petition to determine whether it was complete and slightly
revised the subsequent step to require the court, immediately
upon receipt of the petition, to provide notice to defense counsel

10
The proposal directed the court upon receipt of the petition
to request: “(1) A copy of the charging documents from the
superior court in which the case was prosecuted. [¶] (2) The
abstract of judgment. [¶] (3) The reporter’s transcript of the
plea, if applicable, and the sentencing transcript. [¶] (4) The
verdict forms, if a trial was held. [¶] (5) Any other information
the court finds relevant to its decision, including information
related to the charging, conviction, and sentencing of the
petitioner’s codefendants in the trial court.” (Sen. Bill No. 1437
(2017-2018 Reg. Sess.) as introduced Feb. 16, 2018, § 6.)

15
(either the attorney who represented the petitioner in the
superior court or the public defender if the attorney of record is
no longer available) and the district attorney and to order a
response from both parties “as to whether the petitioner is
entitled to relief.” (Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as
amended May 25, 2018, § 6.) As before, the court was required to
hold a resentencing hearing if it found there was “sufficient
evidence that the petitioner falls within the provisions of this
section.” (Ibid.)
The final version of the bill revived the initial review of the
petition for completeness—that is, its facial sufficiency—as
section 1170.95, subdivision (b)(2). It also introduced the two-
step prima facie showing process contained in subdivision (c).
(Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as amended Aug. 20,
2018, § 4.) Unlike the May 25, 2018 version of the bill, which
directed the court to initiate the briefing process upon receipt of
the petition without any review at all, even for the petition’s
completeness, this final iteration, which authorizes the court both
to dismiss the petition if it lacks any required information and to
determine if there is a prima facie showing the petitioner falls
within the provisions of the statute before ordering briefing,
indicates the Legislature’s intent that the superior court perform
a substantive gatekeeping function, screening out clearly
ineligible petitioners before devoting additional resources to the
resentencing process. (See People v. Lewis, supra, __ Cal.App.5th
at p. ___ [2020 Cal.App. Lexis 9 at *11][allowing the superior
court to consider the record of conviction will avoid misuse of
judicial resources because even a cursory review of the court file
may show as a matter of law the petitioner is not eligible for
relief]; see generally Sen. Com. on Appropriations, Analysis

16
Addendum to Rep. on Sen. Bill No. 1437 (2017-2018 Reg. Sess.)
as amended May 25, 2018, p. 1 [noting “potentially-major
workload costs in the millions of dollars to the courts to process
and adjudicate petitions,” as well as “[u]nknown costs to county
District Attorneys’ Offices and Public Defenders’ Offices to
litigate petitions for resentencing” and “[u]nknown, potentially-
major costs in the hundreds of thousands of dollars to the
millions of dollars to the [Department of Corrections and
Rehabilitation] to supervise and transport inmates from state
facilities to the appropriate courthouses for resentencing
hearings”].)
3. Section 1170.95, Subdivision (c), Does Not Require
Appointment of Counsel Prior to the Court’s Initial
Prima Facie Review
The first sentence of section 1170.95, subdivision (c), directs
the court to review the petition and determine if the petitioner
has made the requisite prima facie showing. The second sentence
provides, if the petitioner has requested counsel, the court must
appoint counsel to represent him or her. The third sentence
requires the prosecutor to file and serve a response to the petition
within 60 days of service of the petition and permits the
petitioner to file a reply to the response. The structure and
grammar of this subdivision indicate the Legislature intended to
create a chronological sequence: first, a prima facie showing;
thereafter, appointment of counsel for petitioner; then, briefing
by the parties. (People v. Lewis, supra, __ Cal.App.5th at p. __
[2020 Cal.App. Lexis 9 at p. *14] [“[w]hen the statutory
framework is, overall, chronological, courts will construe the
timing of particular acts in relation to other acts according to
their location within the statute; that is, actions described in the

17
statute occur in the order they appear in the text”]; see KB Home
Greater Los Angeles, Inc. v. Superior Court (2014)
223 Cal.App.4th 1471, 1477 [same]; Nielsen v. Preap (2019) ___
U.S. ___ [139 S.Ct. 954, 965, 203 L.Ed.2d 333] [“‘[w]ords are to be
given the meaning that proper grammar and usage would assign
them’”]; Bloate v. United States (2010) 559 U.S. 196, 209
[130 S.Ct. 1345, 176 L.Ed.2d 54] [rejecting proposed
interpretation of statute “because it would ignore the structure
and grammar” of the subsection at issue]; see also FilmOn.com
Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 144 [“we interpret
statutory language within its context, and in light of its
structure, analogous provisions, and any other appropriate
indicia of its purpose”].)
Indeed, although Verdugo disputes the nature of the initial
prima facie showing required by section 1170.95, subdivision (c),
he does not argue counsel should be appointed prior to the court’s
resolution of that issue. Nor would it make sense as a practical
matter to appoint counsel earlier in the process since counsel’s
first task is to reply to the prosecutor’s response to the petition.
If, as here, the court concludes the petitioner has failed to make
the initial prima facie showing required by subdivision (c),
counsel need not be appointed. Of course, if the petitioner
appeals the superior court’s summary denial of a resentencing
petition, appointed counsel on appeal can argue the court erred in
concluding his or her client was ineligible for relief as a matter of
law.

18
 4. The Superior Court Correctly Concluded Verdugo Is
Ineligible as a Matter of Law for Any Relief Under
Section 1170.95
A court of appeal opinion, whether or not published, is part
of the appellant’s record of conviction. (People v. Woodell (1998)
17 Cal.4th 448, 456; People v. Cruz (2017) 15 Cal.App.5th 1105,
1110; People v. Brimmer (2014) 230 Cal.App.4th 782, 800.)
Accordingly, it was proper for the superior court to consider this
court’s opinion in People v. Barraza, supra, B194415, which
affirmed Verdugo’s convictions for conspiracy to commit murder
and first degree murder, in determining whether he had made a
prima facie showing of eligibility for relief under section 1170.95
or whether he was ineligible for relief as a matter of law. Based
on the language of our opinion, the court correctly concluded
Verdugo’s murder conviction was necessarily predicated on a
finding he had acted with express malice and, therefore, he was
11
ineligible for relief under section 1170.95.
a. The conspiracy and the murder

11
Other than observing in a footnote in his opening brief that
our opinion “did not state that appellant was convicted as a direct
aider and abettor,” as the superior court wrote in its minute
order, Verdugo does not challenge on appeal the court’s
conclusion his murder conviction was not based on a theory of
felony murder or natural and probable consequences. Instead,
his appeal “is addressed only to the procedural, jurisdictional,
requirements” of section 1170.95. Issues not adequately
developed in an appellate brief are generally deemed forfeited.
(See Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th
1228, 1248 [“‘[w]hen an issue is unsupported by pertinent or
cognizable legal argument it may be deemed abandoned and
discussion by the reviewing court is unnecessary’”].)

19
 The Barraza opinion described a portion of the evidence at
trial in the following language: “Barraza (also known as
‘Stranger’) and Verdugo (also known as ‘Musky’) were active
members of the Arizona Maravilla (AMV) street gang. Peter
Quijas (also known as ‘Pistol Pete’), Angel Martinez (also known
as ‘Bugsy’) and David Lopez (also known as ‘Grumpy’) were also
members of AMV. [¶] In May 2000, after Martinez told Barraza,
Verdugo, Quijas and Lopez he had been beaten up by members of
the rival Marianna Maravilla gang (MMV), Barraza, Quijas and
Verdugo devised a plan to retaliate by shooting a member of
MMV. As crafted, the retaliation plan required Verdugo to drive
a car into MMV territory and look for MMV gang members.
When he spotted an MMV member, he would inform Quijas of the
member’s whereabouts using a two-way radio. Quijas and
Barraza would then drive to the scene and kill the MMV member.
Barraza agreed to be the shooter. Lopez did not say anything
during this conversation. He agreed to take Martinez home. [¶]
In accordance with the plan, Verdugo drove by himself to look for
members of the MMV gang. Using his two-way radio, Verdugo
contacted Barraza and Quijas and told them an MMV member
known as ‘Young Guns’ was wearing a Los Angeles Lakers jersey
and playing basketball on a neighborhood court. Barraza and
Quijas drove in a van to the location identified by Verdugo.
Barraza got out of the van; Quijas remained in the driver’s seat.
When the people on the basketball court saw Barraza, they ran.
Ernesto Ortiz, Jr., who was not a member of any gang, ran in a
different direction from the others—to his house near the
basketball court. Seeing that Ortiz was wearing a Lakers jersey
and mistaking him for ‘Young Guns,’ Barraza aimed his handgun
and fired eight or nine shots at him. Ernesto Ortiz, Jr.’s father

20
heard the gunshots, ran outside and saw Barraza shooting at his
son. He screamed at his son to ‘run’ and rushed to help him.
Ernesto Ortiz, Jr. was shot running to his father and collapsed
bleeding in his father’s arms. He later died from his gunshot
wounds. Ernesto Ortiz, Sr. suffered a gunshot wound to his
abdomen while running to aid his son.”
b. The contention the instructions permitted the jury to
find Barraza and Verdugo guilty of conspiracy to
commit murder without regard to whether either of
them personally intended to kill
Quijas was charged along with Barraza and Verdugo with
murder and conspiracy to commit murder. By the time of trial,
however, Quijas had pleaded guilty to those offenses as part of a
negotiated agreement for a state prison sentence to run
concurrently with an unrelated prison term he was serving; and
he testified as a prosecution witness. Nonetheless, the jury heard
evidence the conspiracy at issue in the case involved three
individuals, Barraza, Verdugo and Quijas.
On appeal Barraza and Verdugo contended the trial court
committed prejudicial error by instructing the jury that to prove
conspiracy to commit murder the People had to establish “[a]t
least two of the persons to the agreement harbored express
malice aforethought, namely a specific intent to kill unlawfully
12
another human being.” Barraza and Verdugo argued the jury

12
At the time CALJIC No. 8.69 provided the option of
instructing “[Each] [At least two] of the persons to the agreement
harbored express malice aforethought, namely a specific intent to
kill unlawfully another human being.” The Use Note to CALJIC
No. 8.69 (Spring 2007 ed.) at page 409 explained, “The alternate

21
may have understood it could convict both of them on the
conspiracy charge even if it found only one of them had
specifically intended to kill a rival gang member. We rejected
that argument, explaining there was no reasonable likelihood the
jury understood the court’s conspiracy instructions, viewed in
13
their entirety, in this manner. After describing a number of the
court’s other instructions, including an instruction that defined a
conspiracy to commit murder as “an agreement entered into
between two or more persons with the specific intent to agree to

bracketed wording has been provided . . . to accommodate the
situation where there is a feigned accomplice.”
13
Ten years after our decision in People v. Barraza, supra,
B194415, the Supreme Court in People v. Garton (2018) 4 Cal.5th
485 held it was error to instruct the jury with the “at least two”
version of CALJIC No. 8.69 in a case involving more than two
alleged members of a conspiracy, none of whom is feigning
involvement, because it “could potentially lead a jury to find an
individual conspirator guilty without finding that he or she
possessed a specific intent to agree or to kill.” (Id. at p. 516.)
Whether giving the incorrect instruction is harmless error must
be measured by the beyond-a-reasonable-doubt standard of
Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824,
17 L.Ed.2d 705] because each defendant’s specific intent to
commit murder is an essential element of the offense. (People v.
Wilkins (2013) 56 Cal.4th 333, 348 [“[w]hen the jury is
‘misinstructed on an element of the offense . . . reversal . . . is
required unless we are able to conclude that the error was
harmless beyond a reasonable doubt’”]; see People v. Brooks
(2017) 3 Cal.5th 1, 69 [“‘[m]isdescription of an element of a
charged offense is subject to harmless error analysis and does not
require reversal if the misdescription was harmless beyond a
reasonable doubt’”].)

22
commit the crime of murder and with the further specific intent
to commit that murder, followed by an overt act,” and the
instruction that the jury must consider the conspiracy charge
separately as to each defendant, we stated, “When viewed in
context, the ‘at least two’ language challenged by Barraza and
Verdugo simply told the jury that in this case—in which a
conspiracy among Barraza, Verdugo and Quijas was alleged—it
need not find both Barraza and Verdugo guilty of conspiracy to
commit murder in order to find either of them guilty of that
offense.”
c. The description of the basis for Verdugo’s murder
conviction
After describing the various instructions relating to
conspiracy and concluding it was not reasonably likely the jury
was confused, we continued, in language relied upon by the
superior court in this proceeding, “The implausibility of any jury
confusion as to the required specific intent is confirmed by its
findings as to both Barraza and Verdugo that the murder was
premeditated and deliberated. The jury’s verdict that both
Barraza and Verdugo were guilty of premeditated murder
necessarily included a finding that both harbored the specific
intent to kill Ortiz Jr. A finding that Verdugo had aided and
abetted the premeditated murder necessarily included a finding
that he, not simply Barraza, specifically intended to inflict death.
(See People v. Jurado [(2006)] 38 Cal.4th [72,] 123 [even though
instruction on conspiracy omitted mention of required specific
intent to commit target offense, omission was harmless beyond a
reasonable doubt; jury’s finding killing was premeditated and

23
deliberated necessarily included finding defendant had specific
14
intent to kill].)”
The superior court correctly understood this language to
mean that, while Barraza, not Verdugo, was the shooter, our
review of the record confirmed that Verdugo’s conviction for first
degree murder was based on a jury finding he had aided and
abetted Barraza in the commission of that offense and had acted
with express malice in doing so. As the Supreme Court recently
explained in parallel circumstances in People v. Beck & Cruz
(2019) 8 Cal.5th 548, 645, despite the fact the court had
mentioned the natural and probable consequences doctrine in the
conspiracy instruction, “Beck and Cruz were charged with
conspiracy to murder, not conspiracy to commit a lesser crime
that resulted in murder. There is thus no possibility they were
found guilty of murder on a natural and probable consequences
theory.”
DISPOSITION
The order summarily denying the section 1170.95 petition
is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J. FEUER, J.

14
Verdugo’s conviction for murder was not specifically at
issue and was not otherwise discussed in the opinion.

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