Filed 9/21/20 P. v. Zolorzano CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B295931
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA054466)
v.
JENNIFER MATILDE
ZOLORZANO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Daviann L. Mitchell, Judge. Reversed with
directions.
Daniel G. Koryn, 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, Assistant
Attorney General, Charles S. Lee and Ryan M. Smith, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
Jennifer Matilde Zolorzano pleaded no contest to second
degree murder. She thereafter petitioned for resentencing under
Senate Bill No. 1437, which amended liability for murderers
convicted under the felony-murder rule or the natural and
probable consequences doctrine. The trial court summarily
denied Zolorzano’s petition without appointing counsel for her.
Zolorzano appeals. We reverse the order.
BACKGROUND
In 2011, Zolorzano and Joe Dennis Hickman were charged
with the malice aforethought murder of her two-year-old son
Deshawn Z. (Pen. Code,1 § 187, subd. (a); count 1), assault on a
child causing death (§ 273ab, subd. (a); count 2), and child abuse
(§ 273a, subd. (a); count 3). Zolorzano pleaded no contest to
second degree murder and was sentenced to 15 years to life in
prison. At the plea hearing, Zolorzano’s counsel refused to
stipulate to a factual basis for the plea and stated that his client
was entering the plea against his advice. After noting that the
plea was therefore being made under People v. West (1970)
3 Cal.3d 595,2 the trial court found a factual basis for the plea
based on the probation report and preliminary hearing
transcripts.3
Thereafter, Senate Bill No. 1437 (2017–2018 Reg. Sess.)
took effect January 1, 2019. That law amended the felony-
1 All further statutory references are to the Penal Code.
2A West plea is one in which the defendant does not admit
a factual basis for the plea. (In re Alvernaz (1992) 2 Cal.4th 924,
932.)
3 Hickman pleaded guilty to voluntary manslaughter.
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murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder, all to the end of
ensuring that a person’s sentence is commensurate with her
individual criminal culpability. Based on the new law, a person
convicted of murder under a felony murder or natural and
probable consequences theory may petition the sentencing court
for vacation of the conviction and resentencing, if certain
conditions are met. (§ 1170.95.)
In 2019, Zolorzano petitioned for resentencing under
Senate Bill No. 1437. In her form petition, Zolorzano checked
boxes indicating: (1) a complaint, information or indictment had
been filed against her that allowed the prosecution to proceed
under a theory of felony murder or murder under the natural and
probable consequences doctrine, (2) she pleaded guilty or no
contest to first or second degree murder because she believed she
could have been convicted of first or second degree murder at
trial under one of those doctrines, and (3) she could not now be
convicted of first or second degree murder because of changes to
sections 188 and 189. Zolorzano also checked boxes to request
that the court appoint counsel for her during the resentencing
process. She did not check a box to indicate she was not the
actual killer.
The trial court summarily denied the petition without
appointing counsel for Zolorzano because its file suggested she
was the actual killer and was not convicted under a felony
murder or natural and probable consequences theory.
Senate Bill No. 1437 also added section 1170.95. “Pursuant
to subdivision (a) only individuals who meet three conditions are
eligible for relief: (1) the person must have been charged with
murder ‘under a theory of felony murder or murder under the
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natural and probable consequences doctrine,’ (2) convicted of first
or second degree murder, and (3) can no longer be convicted of
first or second degree murder ‘because of changes to Section 188
or 189 made effective January 1, 2019.’ ” (People v. Drayton
(2020) 47 Cal.App.5th 965, 973.)
Courts of Appeal have interpreted section 1170.95 to
provide for multiple reviews of a petition by the trial court.
(People v. Tarkington (2020) 49 Cal.App.5th 892, 897–898, review
granted Aug. 12, 2020, S263219; People v. Drayton, supra,
47 Cal.App.5th at p. 974; People v. Cornelius (2020) 44
Cal.App.5th 54, 57–58, review granted Mar. 18, 2020, S260410;
People v. Verdugo (2020) 44 Cal.App.5th 320, 328 (Verdugo),
review granted Mar. 18, 2020, S260493; but see People v. Cooper
(Sept. 1, 2020, A156880) __ Cal.App.5th __.) Subdivision (b) of
section 1170.95 describes an initial review to determine the facial
sufficiency of the petition. (Verdugo, at p. 328.) To be facially
sufficient, the petition must contain the petitioner’s declaration
that the petitioner is eligible for relief according to the criteria in
subdivision (a), the case number and year of conviction, and
whether the petitioner is requesting appointment of counsel.
(§ 1170.95, subd. (b)(1).) If the petition is missing any of this
information “and cannot be readily ascertained by the court, the
court may deny the petition without prejudice.” (§ 1170.95,
subd. (b)(2).) This initial review amounts essentially to a
ministerial review to ensure that the right boxes are checked.
Subdivision (c) of section 1170.95 then describes the next
two levels of review. It provides, “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
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appoint counsel to represent the petitioner. The prosecutor shall
file and serve a response within 60 days of service of the petition
and the petitioner may file and serve a reply within 30 days after
the prosecutor’s response is served. These deadlines shall be
extended for good cause. 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.”
The first sentence in subdivision (c) refers to a prebriefing,
initial prima facie review to preliminarily determine a
petitioner’s statutory eligibility for relief as a matter of law.
(Verdugo, supra, 44 Cal.App.5th at p. 329.) In this step of review,
the trial court determines, based upon its review of readily
ascertainable information in the record of conviction and the
court file, whether the petitioner is statutorily eligible for relief.
(Id. at pp. 329–330.) The court may review the complaint, the
information or indictment, the verdict form or the documentation
for a negotiated plea, and the abstract of judgment. (Ibid.) A
court of appeal opinion is part of the appellant’s record of
conviction (id. at p. 333), as are jury instructions (People v. Soto
(2020) 51 Cal.App.5th 1043, 1055). If these documents reveal
ineligibility for relief, the trial court can dismiss the petition.
(Verdugo, at p. 330.)
But, if the record of conviction does not establish as a
matter of law the petitioner’s ineligibility for resentencing,
evaluation of the petition proceeds to the second prima facie
review, in which “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
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relief.” (Verdugo, supra, 44 Cal.App.5th at p. 330.) The trial
court must accept as true the petitioner’s factual allegations and
make a preliminary assessment regarding whether the petitioner
would be entitled to relief if the factual allegations were proved.
(Id. at p. 328.)
We agree with those Courts of Appeal that interpret
section 1170.95 to permit a trial court to make an initial
determination whether the petitioner may be entitled to relief,
without first appointing counsel. The structure and grammar of
subdivision (c) of that section “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.” (Verdugo, supra, 44 Cal.App.5th at p. 332, italics
added; accord, People v. Lewis, supra, 43 Cal.App.5th at p. 1140.)
As Verdugo at pages 328 to 329 noted, to hold otherwise, that
counsel must be appointed once a petitioner files a facially
sufficient petition, renders subdivision (c) redundant to
subdivision (b)(2).
The trial court here summarily denied Zolorzano’s petition
without appointing her counsel. In doing so, the trial court said
that its court file showed that Zolorzano was the actual killer.
The trial court did not specify what it reviewed,4 but the record
before us includes the information, the minute orders and
reporter’s transcripts of Zolorzano’s plea and sentencing
hearings, Zolorzano’s sentencing memorandum to which a social
4 The better practice is for the trial court to state on
what parts of the record of conviction it relies in making its
decision. (People v. Tarkington, supra, 49 Cal.App.5th at p. 910.)
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history report is attached, and the probation report. The record
does not contain preliminary hearing transcripts.
The Attorney General relies on the probation report and
the information to show Zolorzano was the actual killer or a
direct aider and abettor, and, as such, ineligible for relief. Per
the probation report, deputies responded to a report of a
suspicious death. Deshawn Z.’s five-year-old sister told deputies
that “daddy” hit Deshawn Z. with a stick because he would not
eat his noodles. Deshawn Z. had bruises to his skull, face, and
chin; bruise marks and pattern marks on his stomach; and a
possible rope mark on his ankle. Zolorzano told detectives she
had been abusing her son for four or five months. On the day he
died, he would not listen to her, so she whacked him with a stick
once on the side of the head and five to six times on his arms and
hands. Zolorzano “also stated her boyfriend hit her son twice
with the stick before she hit him. She stated Deshawn Z. then
stopped breathing and they took him to the hospital.” The
coroner’s report indicated death was a probable homicide due to
asphyxia from bruising around Deshawn Z.’s neck.
We will assume without deciding that the probation report
is part of the record of conviction upon which a trial court may
rely to determine eligibility for resentencing under section
1170.95. (See People v. Hall (2019) 39 Cal.App.5th 831 [hearsay
in probation report admissible to determine eligibility for
Proposition 47 resentencing]; People v. Sledge (2017)
7 Cal.App.5th 1089, 1098 [same].) Even so, the probation report
does not show that Zolorzano is statutorily ineligible for
resentencing as a matter of law. The probation report refers to
Deshawn Z.’s sister’s statement that Hickman beat Deshawn Z.
and to Zolorzano’s statement that Hickman first beat
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Deshawn Z., and then Deshawn Z. stopped breathing. Thus, two
people beat Deshawn Z. While the probation report certainly
supports a conclusion that Zolorzano was the actual killer or a
direct aider and abettor, it does not preclude a theory that she
aided and abetted Hickman to commit a target offense the
natural and probable consequence of which was murder. Thus,
the probation report is insufficient to defeat Zolorzano’s initial
prima facie showing.5
The Attorney General also argues that Zolorzano was not
charged in a way in which she could have been convicted under
the felony murder or natural and probable consequences
doctrines. That is true as to the felony-murder doctrine because
the only felony other than murder with which Zolorzano was
charged was child abuse (§§ 273ab, subd. (a), 273a, subd. (a)).
Child abuse cannot be the basis for second degree felony murder.
(People v. Chun (2009) 45 Cal.4th 1172, 1190–1191). However, as
murder was charged generically, the charging document did not
preclude the People from proceeding under a natural and
probable consequences theory of aiding and abetting. Thus, the
information is similarly insufficient to defeat Zolorzano’s initial
prima facie showing.
Also of concern is the trial court’s reliance on the absence of
jury instructions for aiding and abetting, felony murder, or
natural and probable consequences. There would not be any jury
instructions because Zolorzano pleaded guilty and never faced a
5 That this was a West plea does not undermine the
existence of any factual basis for the plea, but it heightens our
hesitation to rely on just the probation report.
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jury. This calls into question the adequacy of the trial court’s
initial prima facie review.
For this reason and because the record of conviction before
us does not preclude relief as a matter of law, Zolorzano’s petition
must proceed to the second level of prima facie review in section
1170.95, subdivision (c). The trial court therefore must appoint
counsel to represent Zolorzano, order the prosecutor to file and
serve a response, permit Zolorzano to file a reply, and to permit
the parties to offer additional evidence and argument in
accordance with that section.
DISPOSITION
The order is reversed. The trial court is directed to appoint
counsel for petitioner Jennifer Matilde Zolorzano and to conduct
further proceedings in accordance with Penal Code section
1170.95.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
EDMON, P. J.
EGERTON, J.
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