Filed 9/23/20 P. v. Lopez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B301826
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA128074
v.
ARMANDO ARELLANO LOPEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, James Richard Dabney, Judge. Affirmed.
Mark D. Lenenberg, 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 David A. Wildman, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant Armando Arellano Lopez appeals
from the trial court’s denial of his petition for resentencing
under Penal Code section 1170.95.1 Lopez is not eligible for
resentencing because he was not tried for or convicted of murder
under either the felony murder rule or the natural and probable
consequences doctrine. Accordingly, we affirm the court’s order
summarily denying Lopez’s petition.
FACTS AND PROCEDURAL BACKGROUND
In June 1996 a jury convicted Lopez of the first degree
murder of Ricardo Miramontes. The jury found true an
allegation that, in the commission of the crime, a principal
was armed with a firearm.
After Senate Bill No. 1437 (SB 1437) took effect, Lopez
filed on February 1, 2019 a form petition for resentencing under
section 1170.95. Lopez checked box 6, stating, “I was convicted of
2nd degree murder under the natural and probable consequences
doctrine or under the 2nd degree felony murder doctrine and
I could not now be convicted of murder because of changes to
Penal Code § 188, effective January 1, 2019.”2
The District Attorney’s Office filed two requests for
extensions of time to submit an informal response to Lopez’s
petition. The District Attorney served the requests on the office
of the Alternate Public Defender. On April 8, 2019, when the
prosecution’s first request for more time was heard, the deputy
1 References to statutes are to the Penal Code.
2 Although it is not clear from the copy of Lopez’s petition
in the Clerk’s Transcript, it appears Lopez did not check boxes
1 through 4 or 5 but he did check boxes under box 5 as well
as box 6. To avoid any need for the trial court to send the
incomplete petition back to Lopez, we will proceed as if he
had checked the relevant boxes on the form.
2
public defender assigned to that courtroom told the court she was
“not on this case.” The court “inform[ed] counsel that he [would]
appoint the Office of the Public Defender at a later date.” On
June 17, 2019, when the prosecution’s second request for more
time was heard, the minute order states, “Defendant is not
present in court, but represented by Keisha Reed-McClean
Deputy Public Defender.”
On August 26, the District Attorney filed a response to
Lopez’s petition for resentencing. The People stated Lopez had
been convicted of murder but not under “either a felony murder
or a natural and probable consequences theory of culpability. His
jury was not instructed on either of those theories of culpability.
Rather, petitioner was prosecuted as a direct aider and abettor
to the murder.” The District Attorney attached to the response
copies of the 1997 court of appeal opinion affirming Lopez’s
conviction and the jury instructions given to his jury.3
On August 26, 2019, the trial court (Judge James Richard
Dabney) issued an in chambers ruling. The minute order reflects
Lopez was “not present in court, and not represented by counsel.”
In a written order, Judge Dabney noted the prosecution’s
response to the petition asserted Lopez had not been “convicted
as an aider and abettor under the natural and probable
[consequences] doctrine or under a theory of felony murder.”
The court stated it had “reviewed the instructions given the jury”
and found the People’s assertion to be accurate. Accordingly,
3 The District Attorney also argued SB 1437 was
unconstitutional. The trial court did not reach that argument.
Courts have held section 1170.95 to be constitutional. (See
People v. Solis (2020) 46 Cal.App.5th 762; People v. Superior
Court (Gooden) (2019) 42 Cal.App.5th 270.)
3
Judge Dabney concluded, Lopez had failed to make a prima facie
showing under section 1170.95.
DISCUSSION
Lopez contends his form petition “stated a prima facie case”
for resentencing and the trial court “erred” “by stepping outside
the four corners of [his] petition to conduct an unauthorized
investigation.”4 We disagree. The trial court read the
instructions given to the jury at Lopez’s trial. Those instructions
were properly considered for the nonhearsay purpose of
determining whether Lopez was tried on a natural and probable
consequences theory or under the felony murder rule. He was
not. When—as here—the record of conviction establishes the
petitioner is ineligible for relief as a matter of law, the court
may summarily deny the petition.
SB 1437 added section 1170.95 to the Penal Code. It
“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).)” (People
v. Verdugo (2020) 44 Cal.App.5th 320, 326 (Verdugo), review
granted Mar. 18, 2020, S260493.)
“If the petition contains all required information, section
1170.95, subdivision (c), prescribes a two-step process for the
4 Lopez first states “no documentary evidence was appended
to the petition.” Lopez then states he “filed a declaration, with
exhibits, that followed step-by-step the conditions for relief”
under SB 1437. By “declaration,” Lopez apparently means
the petition itself, as his record citations are to the petition.
The petition in our record on appeal has no “exhibits.”
4
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.’ ”
(Verdugo, supra, 44 Cal.App.5th at p. 327.)
As our colleagues in Division Seven have noted, “the court’s
role in conducting the first prima facie review of the petition . . .
must be something more than simply determining whether the
petition is facially sufficient.” (Verdugo, supra, 44 Cal.App.5th at
p. 328.) “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.” (Id. at p. 329.)
The statute “directs the court in considering the facial sufficiency
of the petition to access readily ascertainable information”—
“documents in the court file or otherwise part of the record of
conviction.” (Ibid.) Based on this threshold review, the court can
dismiss any petition filed by a person who is ineligible for relief
as a matter of law—for example, someone who was not convicted
of felony murder or murder under the natural and probable
consequences theory. (See People v. Edwards (2020) 48
Cal.App.5th 666, 673-674 (Edwards), review granted July 8,
2020, S262481 [trial court considered jury instructions and
reporter’s transcript of prosecutor’s closing argument in
determining petitioner had not been convicted of felony murder
or murder under the natural and probable consequences
doctrine]; People v. Soto (2020) 51 Cal.App.5th 1043 (Soto)
[jury instructions]; People v. Smith (2020) 49 Cal.App.5th 85, 92,
5
fn. 5, review granted July 22, 2020, S262835 [“if the jury was
not instructed on a natural and probable consequences or felony-
murder theory of liability, the petitioner could not demonstrate
eligibility as a matter of law because relief is restricted to persons
convicted under one of those two theories”]. Cf. Verdugo, supra,
44 Cal.App.5th at p. 331 [Legislature intended superior courts
to “perform a substantive gatekeeping function, screening out
clearly ineligible petitioners before devoting additional resources
to the resentencing process.”]. See also People v. Lewis (2020)
43 Cal.App.5th 1128, 1137-1139 (Lewis), review granted Mar. 18,
2020, S260598 [superior court can consider record of conviction
in evaluating the petitioner’s initial prime facie showing under
§ 1170.95, subd. (c); petitioner was direct aider and abettor and
thus ineligible for resentencing]; People v. Tarkington (2020)
49 Cal.App.5th 892, 899, review granted Aug. 12, 2020,
S263219 (Tarkington) [record of conviction showed petitioner
was actual killer].)5 The leading treatise states, “Nothing in
the statute precludes the court . . . from conducting its own
review of other readily available information such as the court’s
file.” (Couzens et al., Sentencing Cal. Crimes (The Rutter Group
2020) ¶ 23:51(H)(2) (hereafter Couzens).)
Here, Judge Dabney reviewed the jury instructions given
at Lopez’s trial. Lopez’s jury was instructed with CALJIC Nos.
8.10, 8.11, 8.20, 8.30, 8.70, and 8.71 on murder, malice, and first
5 Lewis and Verdugo—as well as People v. Cornelius (2020)
44 Cal.App.5th 54 (Cornelius), review granted Mar. 18, 2020,
S260410—were published before Lopez filed his opening brief but
he did not cite any of those cases. In his reply brief, Lopez states
all three cases “are badly reasoned.”
6
versus second degree murder.6 The jury also was instructed
on direct aiding and abetting, with CALJIC Nos. 3.01 and 3.03.
But the jury was not instructed on felony murder or the natural
and probable consequences doctrine.
Soto, supra, 51 Cal.App.5th 1043 is virtually identical to
this case. There, Soto was the driver of a car carrying another
man who shot the victim to death. In 1996 a jury convicted
him of second degree murder. Soto’s jury was instructed on
“principles of aider and abettor liability” but not “that Soto
could be liable for [first and second degree murder] either as
the natural and probable consequence of the commission of
another crime or based upon the felony-murder rule.” (Id. at
pp. 1048-1050.)
Soto petitioned for resentencing under section 1170.95, the
trial court denied the petition, and the court of appeal affirmed.
(Soto, supra, 51 Cal.App.5th at p. 1048.) The appellate court held
that “the jury instructions themselves demonstrate as a matter
of law that Soto could not make a prima facie showing that he is
entitled to relief.” (Id. at p. 1055.) The court noted Soto’s “jurors
were not provided any instruction on which they could have
found Soto guilty of murder under [the natural and probable
consequences] doctrine.” Accordingly, “under the instructions,
the jury necessarily found Soto culpable for murder based on
6 It is unclear if the copy of the jury instructions that the
District Attorney filed in the trial court was missing two pages:
those containing CALJIC Nos. 8.30 (unpremeditated second
degree murder) and 8.70 (degree of murder). We granted the
Attorney General’s motion to augment the record with (1) a
complete copy, signed by the trial court, of the jury instructions
given at Lopez’s trial, and (2) the reporter’s transcript of the
instructions as read to the jury by the trial court.
7
his own actions and mental state as a direct aider and abettor
of murder.” (Ibid.)
We agree with the Soto court’s straightforward, common
sense approach. (See also Edwards, supra, 48 Cal.App.5th at
p. 671 [superior court’s summary denial of petition “was based
on a review of the jury instructions . . . ‘regarding felony-murder
or aider and abettor natural and probable consequences theories
of murder’ ”]; Tarkington, supra, 49 Cal.App.5th at p. 909 [court
“can determine whether the defendant . . . was tried under the
felony-murder or natural and probable consequences doctrine[ ]
by a simple examination of the record, including . . . the jury
instructions”].)
Lopez contends the trial court “erred by engaging in
an analysis of the evidence as outlined in the Court of Appeal
opinion and making credibility determinations.” He argues the
court relied on “hearsay factual statements in the court of appeal
opinion” affirming his conviction. The record does not support
these contentions.
As noted, the sole basis the trial court gave for its summary
denial of Lopez’s petition was its review of the jury instructions.
The court stated, in essence: “The People say Lopez was not
convicted as an aider and abettor under the natural and probable
consequences doctrine or under a theory of felony murder.
I’ve read the jury instructions. The People’s representation
is accurate.” Judge Dabney made no reference to this court’s
1997 opinion on direct appeal or to any factual statements in
that opinion.7 (Cf. Soto, supra, 51 Cal.App.5th at p. 1055
7 As Verdugo and other cases have noted, a court of appeal
opinion—whether or not published—is part of the record of
conviction. (See Verdugo, supra, 44 Cal.App.5th at p. 333; Lewis,
supra, 43 Cal.App.5th at pp. 1137-1139. Cf. People v. Woodell
(1998) 17 Cal.4th 448, 459 [not all hearsay statements within
8
[jury instructions given at petitioner’s trial provide “ ‘readily
ascertainable facts from the record’ that refute the petitioner’s
showing, and reliance on them to make the eligibility or
entitlement determinations may not amount to ‘factfinding
involving the weighing of evidence or the exercise of
discretion’ ”].)
We do not understand Lopez to be arguing that the jury
instructions themselves are inadmissible hearsay. Any such
contention would be meritless in any event. If someone offered
the jury instructions as evidence of what the law is in California,
they might be hearsay. But here the District Attorney presented
the instructions only for the nonhearsay purpose of establishing
the theories of criminal responsibility the prosecution did—
and did not—present to the jury. “There is a well-established
exception or departure from the hearsay rule applying to cases
in which the very fact in controversy is whether certain things
were said or done and not as to whether these things were true
or false, and in these cases the words or acts are admissible not
as hearsay, but as original evidence.” (People v. Henry (1948)
86 Cal.App.2d 785, 789. See generally Witkin, Cal. Evidence
(5th ed. 2020) Hearsay, § 32 [citing cases; “In these situations,
the words themselves, written or oral, are ‘operative facts,’ and
an issue in the case is whether they were uttered or written.”].)
an appellate opinion are admissible or subject to judicial notice
but appellate opinion can be used to determine the basis of
a conviction, i.e., to “help determine the nature of the crime
of which the defendant has been convicted”].) The California
Supreme Court has granted review in Lewis on the question of
whether the superior court may consider the record of conviction
in determining if a petitioner has made a prima facie showing
of eligibility for relief under section 1170.95. (Soto, supra,
51 Cal.App.5th at p. 1055, fn. 11.) In any event, here—as we
have said—the trial court did not rely on our 1997 opinion.
9
The “operative fact” at issue in Lopez’s case is whether the court
instructed the jury on felony murder or the natural and probable
consequences doctrine. As the court did not, Lopez is ineligible
for resentencing as a matter of law.
Finally, “[i]f, 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.” (Verdugo, supra, 44 Cal.App.5th at
pp. 332-333. Accord, Lewis, supra, 43 Cal.App.5th at p. 1140
[“the trial court’s duty to appoint counsel does not arise unless
and until the court makes the threshold determination that
petitioner ‘falls within the provisions’ of the statute”]; Cornelius,
supra, 44 Cal.App.5th at p. 58 [rejecting contention that court
was required to appoint counsel for petitioner “once he alleged
he satisfied the filing requirements for the petition, regardless
of whether the allegations [were] accurate”]; Tarkington, supra,
49 Cal.App.5th at pp. 899-902; Couzens, supra, ¶ 23:51(H)(2)
[“It would be a gross misuse of judicial resources to require
the issuance of an order to show cause or even appointment
of counsel based solely on the allegations of the petition, which
frequently are erroneous, when even a cursory review of the
court file would show as a matter of law that the petitioner is
not eligible for relief.”]. But see People v. Cooper (Sept. 1, 2020,
A156880) __ Cal.App.5th __ [2020 WL 5175210] [disagreeing with
Verdugo and Lewis].)
Our high court has granted review in Lewis, Verdugo, and
Cornelius, identifying the issues to be considered as “(1) May
superior courts consider the record of conviction in determining
whether a defendant has made a prima facie showing of
10
eligibility for relief under Penal Code section 1170.95? (2) When
does the right to appointed counsel arise under Penal Code
section 1170.95, subdivision (c)?” (Lewis, review granted Mar. 18,
2020, S260598; Verdugo, review granted Mar. 18, 2020, S260493;
Cornelius, review granted Mar. 18, 2020, S260410.) Pending
further guidance from our Supreme Court, we agree with our
colleagues in Divisions One, Six, and Seven who issued Lewis,
Cornelius, and Verdugo, respectively.
The trial court properly denied Lopez’s petition for
resentencing because he was not tried for or convicted of felony
murder or murder under the natural and probable consequences
doctrine. Accordingly, he is indisputably ineligible for relief
under SB 1437 as a matter of law.
DISPOSITION
We affirm the trial court’s order denying Armando Arellano
Lopez’s petition for resentencing under section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
I concur:
DHANIDINA, J.
11
LAVIN, J., Dissenting:
For the reasons laid out in my dissent in People v.
Tarkington (2020) 49 Cal.App.5th 892, review granted August 12,
2020, S263219, I would reverse the order.
LAVIN, Acting P. J.