Filed 10/14/20 P. v. Lorenzo CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B298311
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA102845)
v.
JAIME LORENZO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, John A. Torribio, Judge. Reversed and
remanded with directions.
Charles R. Khoury, Jr., 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, Senior
Assistant Attorney General, Michael R. Johnsen and Charles S.
Lee, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant Jaime Lorenzo appeals from the
trial court’s denial of his Penal Code section 1170.951 petition for
resentencing. We reverse and remand to the trial court for
further proceedings as set forth below.
II. FACTUAL AND PROCEDURAL BACKGROUND
We take our factual and procedural background from our
second and most recent nonpublished opinion in this case, People
v. Lorenzo (Feb. 19, 2019, B285142):
“The following facts are from our prior nonpublished
opinion in People v. Carino (Mar. 24, 2011, B220035), 2011
Cal.App. Unpub. LEXIS 2246. In 2009, defendant was ‘convicted,
following a jury trial, of the second degree murder of Albert Rojas
in violation of Penal Code section 187, subdivision (a) (count 1)
and the first degree murder of Federico Perez also in violation of
section 187, subdivision (a) (count 2). . . . The jury found true as
to both [defendant and co-defendant David Carino] the allegation
that a principal was armed with a firearm in the commission of
the murders within the meaning of section 12022, subdivision
(a)(1).’ (Ibid.) ‘The jury found not true the allegation that
[defendant] personally used a firearm within the meaning of
section 12022.53, subdivision (b).’ (Ibid.)
“‘The same jury convicted [co-defendant Cesar Cardenas] of
vehicular manslaughter with gross negligence in the death of
Rojas, in violation of section 192, subdivision (c)(1).’ (Ibid.)
1 All further statutory references are to the Penal Code.
2
“The evidence at trial demonstrated that on an evening in
October 2007, the two murder victims and their friends walked
out of a bar. (People v. Carino, supra, B220035.) One of the
friends, Erik Calderon, ‘relieved himself between two parked cars
in the parking lot. . . . Someone said, “Did you call us
[expletive]?” Erik saw that a truck was parked in the middle of
the parking lot with the doors open. Four people were standing
in front of [one of Erik’s co-workers]. The men were Juan Garcia,
[defendant, and Carino]. Carino and one other man were holding
guns. (Ibid.)
“‘The two men with guns pointed them at Erik. Erik
repeated that they were leaving.
“‘[Victim] Rojas walked up to the group, and the men
pointed their guns at him. Garcia asked Rojas who he was.
Rojas raised his hands to his shoulders and raised his sweatshirt
slightly. Rojas started walking backwards away from the men.
Garcia swung at Rojas, grazing his chin. Garcia then told the
other men to hold Rojas. The three men rushed toward Rojas,
who continued to walk backwards and attempt[ed] to protect his
face. Garcia continued swinging.
“‘When Rojas reached the sidewalk on Gage [Street],
[victim] Perez ran up and began swinging. Garcia and two of the
men turned their attention to Perez and tried to hit him. One
man stayed with Rojas. Carino held a revolver and looked at
Perez. Rojas tried to get away and took a gun dropped by
[defendant]. Rojas moved toward Perez. Carino fired at Perez,
but the gun did not go off. He fired again and hit Perez. He then
fired three shots at Rojas, who was about five feet away. The
shooting was described in the reverse order [by a worker from the
bar].
3
“‘Rojas was in front of a Maxima sedan. He fell after being
hit by the gunshot. Before he hit the ground, the Maxima, driven
by Cardenas, hit him. The front end of the car lifted. Rojas, who
weighed 250 pounds, became stuck between the front wheels of
the car. . . . [Cardenas made repeated attempts to move the car
and eventually drove down the street], dragging Rojas under the
car. Both [Rojas and Perez] later died [from their injuries].’
(People v. Carino, supra, B220035.)
“‘[Defendant] was interviewed by the police and told them
that Carino shot Perez and Rojas. He said that Carino gave him
a semi-automatic handgun before they got out of the truck.
Carino had a revolver. During [defendant’s] fight with a man,
the gun fell out of [defendant’s] pocket. [Defendant] heard
gunshots, picked up his fallen gun, got into the truck and gave
the gun back to Carino. They drove away.’ (People v. Carino,
supra, B220035.)
“‘The trial court sentenced [defendant] to 25 years to life in
state prison for the first degree murder conviction, plus a
concurrent 15 year[s] to life term for the second degree murder
conviction.’ (People v. Carino, supra, B220035.) This court
affirmed the conviction and judgment as to defendant. (Ibid.)
“On January 28, 2015, defendant filed a petition for a writ
of habeas corpus in the trial court, contending that he could not
be convicted of first degree murder as an aider and abettor with a
natural and probable consequences theory under People v. Chiu
(2014) 59 Cal.4th 155 . . . . The District Attorney filed a
concession brief, agreeing that the petition should be granted.
The District Attorney elected not to retry defendant on first
degree murder and instead agreed defendant’s conviction on
4
count 2 should be reduced from first degree to second degree
murder, and that defendant should be resentenced accordingly.
“On March 17, 2017, the same trial judge who had presided
over the trial and sentenced defendant, granted defendant’s
petition and reduced defendant’s first degree murder conviction
to second degree murder. In rejecting defendant’s argument that
he should be sentenced to involuntary manslaughter,[fn. omitted]
. . . the trial court stated, ‘Well, I have to say, counsel, that I
heard the case, and I think this young man was up to—I think
the evidence is ample and almost overwhelming that he was up
to his ears in this whole transaction. [¶] He wasn’t a bystander
swept up by the events that—and there he is with his buddy and
his gun falls out of his pocket and people die.’” (People v. Lorenzo,
supra, B285142.)
On July 19, 2017, the trial court conducted defendant’s
resentencing hearing. It again rejected defendant’s request that
he be sentenced to involuntary manslaughter and probation and,
instead, sentenced him to “‘15 years to life. [¶] All other
conditions as stated before apply.’” (People v. Lorenzo, supra,
B285142.)
On February 25, 2019, defendant filed a petition for
resentencing pursuant to section 1170.95.2 The matter was
assigned to the same trial judge who had presided over
defendant’s trial and sentencing hearings. On March 21, 2019,
2 The petition consisted of a declaration from defendant’s
trial counsel declaring defendant’s eligibility for section 1170.95
resentencing. In his declaration, defense counsel stated that
defendant requested the trial court to appoint counsel for him.
Although no appointment order appears in the record, the trial
court served trial counsel with all minute orders and trial counsel
filed the notice of appeal.
5
the prosecution filed a request for an extension of time to file an
informal response to the petition. The trial court granted the
request and continued the hearing to May 30, 2019.
On April 22, 2019, in chambers, off the record, and without
counsel for either party or defendant present, the trial court
denied defendant’s petition. It ruled, “This is not a natural and
probable [consequences] case. The law of the case was
established by the Court of Appeal in People v[.] Carino et [al.]
B220035 filed 3/24/11, wherein the court found petitioner was
equally guilty. It was an aider and abettor theory.”
III. DISCUSSION
Defendant contends the trial court erred in denying his
section 1170.95 petition based on its finding that his murder
convictions were not based on a natural and probable
consequences theory. The Attorney General concedes the trial
court’s error.
“Senate Bill No. 1437 . . . amended the felony-murder rule
and eliminated the natural and probable consequences doctrine
as it relates to murder. Senate Bill 1437 also permits, through
new . . . 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 Senate Bill 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
6
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)).” (People v. Verdugo (2020) 44
Cal.App.5th 320, 323, fn. omitted, review granted Mar. 18, 2020,
S260493 (Verdugo).)
The trial court summarily dismissed defendant’s petition,
apparently ruling that defendant failed to establish a prima facie
case based on its finding that this is not a natural and probable
consequences case. The court, however, previously granted
defendant’s petition for writ of habeas corpus in which he
contended he could not be convicted of first degree murder as an
aider and abettor under a natural and probable consequences
theory under People v. Chiu, supra, 59 Cal.4th 155. As noted, the
Attorney General concedes the trial court’s error.3
3 At oral argument, defendant withdrew an argument, raised
in his briefs, that the trial court was required, on remand, to
proceed directly to resentencing and forego the remainder of
section 1170.95’s steps. Defendant also requested an immediate
issuance of the remittitur. The Attorney General stipulated to an
immediate issuance of a remittitur, in this matter, if this court’s
disposition remanded the proceedings for the appointment of
counsel and further proceedings in accordance with the terms of
section 1170.95.
7
IV. DISPOSITION
The order is reversed. The matter is remanded to the trial
court to appoint counsel and conduct further proceedings in
accordance with the terms of section 1170.95. The remittitur
shall issue forthwith pursuant to California Rules of Court, rule
8.272(c)(1).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
8