People v. Garcia

Filed 11/4/20
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B300163
(Super. Ct. No. F000270432002)
Plaintiff and Respondent, (San Luis Obispo County)

v.

OSCAR ARMANDO
GARCIA,

Defendant and Appellant.

A violent criminal street gang, Paso 13, gave a “green light”
to kill Raul Mosqueda, a past associate of Paso 13 who was
friendly with members of a rival gang. Mosqueda was
subsequently assaulted by seven persons, including two members
and one associate of Paso 13. Appellant Oscar Armando Garcia,
a member of the gang, participated in the assault. The attackers
punched and kicked Mosqueda until he lay helpless on the floor.
Appellant directed the other gang member, David Rey, to stab
the victim. Rey fatally stabbed Mosqueda four times in the chest.
While Mosqueda was dying on the floor, appellant taunted him.
Although this could have been a first degree murder, appellant
was convicted by a jury of second degree murder.
 Appellant was convicted in 1998. Pursuant to a new
statute, Penal Code section 1170.95,1 in 2019 appellant filed a
petition to vacate his murder conviction. He sought an
evidentiary hearing at which the prosecution would have the
burden of proving, beyond a reasonable doubt, that he was
ineligible for relief. (Id., subd. (d)(3).) Appellant alleged that he
1) “did not, with the intent to kill, aid [or] abet . . . the actual
killer”; 2) was not a “major participant” in the murder; 3) did not
act with “reckless indifference to human [life]”; and 4) could not
presently be convicted of murder.
Appellant’s allegations conflict with the evidence presented
at trial. As we shall explain, the Legislature surely did not
intend that appellant would be entitled to an evidentiary hearing
to retry the underlying criminal case against him. We affirm the
order denying his petition.
Procedural Background
In 1998 appellant was convicted by a jury of second degree
murder under the natural and probable consequences doctrine.
(§§ 187, subd. (a), 189.) He was also convicted of conspiracy to
commit assault by means of force likely to produce great bodily
injury. (§§ 182, subd. (a)(1), 245, subd. (a)(1), now (a)(4).) The
jury found true an allegation that he had committed the murder
for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
He was sentenced to prison for 15 years to life. In a 2001
nonpublished opinion, People v. Garcia et al. (July 23, 2001,
B126854) (Garcia), we affirmed the judgment of conviction as to
appellant and his codefendants: Sergio Ortiz, David Rey,
Gregory Vived, Jr., and Monte Weatherington.

1 All statutory references are to the Penal Code.

2
 Section 1170.95 was added to the Penal Code by Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (S.B. 1437), which became
effective on January 1, 2019. (See Stats. 2018, ch. 1015, § 4.) If a
defendant has previously been convicted of murder under the
felony-murder rule or the natural and probable consequences
doctrine and qualifies for relief under section 1170.95, the new
statute permits the defendant to petition to vacate the conviction
and obtain resentencing on any remaining counts. One of the
criteria for relief is that the defendant could not presently be
convicted of murder because of changes made by S.B. 1437. (§
1170.95, subd. (a)(3).) To obtain the evidentiary hearing
appellant seeks, he must make a “prima facie showing” that he
satisfies the statutory criteria. (Id., subd. (c).)
The trial court denied the petition because appellant had
failed to make a prima facie showing that, as a result of changes
made by S.B. 1437, he could not presently be convicted of murder.
(§ 1170.95, subds. (a)(3), (c).) We conclude that appellant’s
showing did not rise to the required “prima facie” level. The
statement of facts in our 2001 opinion establishes that, after the
effective date of S.B. 1437, appellant could be convicted of second
degree murder as a direct aider and abettor of the killing of
Mosqueda. Our conclusion is based on evidence that appellant
directed the actual killer, David Rey, to stab the victim. We
reject the Attorney General’s concession “that the denial of
appellant’s petition should be reversed” because he made the
requisite prima facie showing.
Holding
We hold that where, as here, the record of conviction
contains substantial evidence based on which a reasonable trier
of fact could find the petitioner guilty of murder beyond a

3
reasonable doubt under current law despite the changes made by
S.B. 1437, the petitioner has failed to carry his burden of making
a prima facie showing that he could not presently be convicted of
murder because of changes made by S.B. 1437. (§ 1170.95, subds.
(a)(3), (c).) The petition must be denied even though the
assertions in the petition, if true, would satisfy the statutory
criteria for relief.
Facts
The facts are taken from the statement of facts at pages 2-5
of our nonpublished 2001 opinion, which was attached as
“Exhibit A” to appellant’s petition:
“Paso Robles 13 (Paso 13) is a criminal street gang.
Mosqueda, whose moniker is ‘dreamer,’ was a past associate of
Paso 13. Mosqueda was friendly with the members of Nameless
Crew Style (NCS), a rival gang that was engaged in ‘warfare’
with Paso 13. . . . Paso 13 put out a ‘green light’ on Mosqueda,
which meant that he was ‘free game’ to kill. [David] Rey and
[appellant] were members of Paso 13, and [Sergio] Ortiz
associated with the gang.
“ [¶] [¶]
“During the evening of April 12, 1998, Reginald Calhoun
went to the trailer park residence of Ortiz and [Monte]
Weatherington. [Appellant and other persons were present]
there. Mosqueda became the subject of conversation, and
everyone was saying, ‘Hey, we want to kick dreamer’s ass.’
“Calhoun was paged by [Gregory] Vived[, Jr.]. Calhoun
telephoned Vived, who said that Mosqueda was going to be at a
party in Paso Robles. . . .
“Calhoun, [Manuel] Preciado, and [other persons, including
appellant,] drove to the Paso Robles party in three cars. Rey was

4
the sole passenger in a car driven by [appellant]. Rey was armed
with a knife that he displayed to [appellant] inside the car.
[Italics added.] Rey put the knife in his pocket. At the trailer
park, Rey had not displayed the knife or mentioned that he
possessed it.
“After parking their cars in Paso Robles, Calhoun,
Preciado, and [other persons, including appellant,] walked to the
apartment where the party was occurring. Weatherington
knocked on the front door. A female opened the door, and
Weatherington asked to speak to ‘dreamer.’ Mosqueda came to
the door and said, ‘What do you guys want?’ Weatherington told
him to come outside. Mosqueda said, ‘We don’t want no problems
here.’ Mosqueda closed the door, and another person locked it.
Calhoun picked up a potted plant and threw it through a plate-
glass window. Rey and Weatherington kicked the front door
open. Calhoun, Preciado, and [other persons, including
appellant,] ran through the doorway into the apartment. They
were saying, ‘Get your beating like a man,’ and ‘You know what
time it is. You know it’s up.’ Everyone inside ‘just started
scattering.’ Mosqueda retreated into a bathroom and tried to
close the door. Calhoun testified that he and Rey pulled
Mosqueda out into the hallway, but other witnesses testified that
Weatherington did the pulling. Calhoun and [other persons,
including appellant,] punched Mosqueda in the hallway. There
was ‘a big commotion of bodies’ and people were screaming.
“ [¶]
“Mosqueda fell to the floor and was lying on his side
against a wall. [Appellant] said to Rey, ‘You got a knife. You got

5
a knife. Stick him. Stick him.’ [Italics added.2] Rey stabbed
Mosqueda four times in the chest. Mosqueda crawled out of the
hallway ‘like a baby’ on his hands and knees with blood on his
face, chest, and stomach. Rey, Vived, [appellant], Ortiz, and
Calhoun were ‘around him’ and were punching and kicking him.
People in the background were saying, ‘Leave him alone. He’s
knocked out.[’] Mosqueda fell to his side. Rey, Vived, [appellant],
Ortiz, and Calhoun continued to hit and kick him. [Appellant]
said, ‘Now what’s up dreamer? . . . Now you ain’t talking. You’re
not saying nothing now, are you?’ . . .
“Later that night, Preciado, Ortiz, and Weatherington met
[appellant] in a parking lot. [Appellant] told them that Rey had
stabbed Mosqueda ‘penitentiary style, real quick,’ and that
anyone who said ‘anything to the cops’ would ‘get bumped off’ in
prison. [Appellant] said that Rey ‘had got his stripes.’ This
meant that Rey had earned respect from other gang members
and ‘was up at the top with the big boys . . . .’
“ [¶]
“An expert on criminal street gangs testified that the
killing of Mosqueda had benefited Paso 13 because it had ‘slowed
down’ the escalation in violence between Paso 13 and NCS and
had ‘put [Paso 13] back on top.’”

2 During closing argument to the jury, the prosecutor
emphasized appellant’s statement: “Reggie Calhoun . . . saw
[appellant] there hitting Raul Mosqueda, and he heard
[appellant] say, ‘Stick him, stick him.’” Calhoun testified under a
grant of immunity. During closing argument, appellant’s counsel
said: “In order to rise to the level of second-degree murder, there
has to be an intent to kill . . . . The only thing . . . that’s in
evidence relative to [appellant] in that regard, . . . is the alleged
statement, ‘Stick him, stick him.’”

6
 Trial Court’s Ruling
The trial court considered the statement of facts in our
2001 opinion. It ruled that appellant was not eligible for relief
because he had failed to make a prima facie showing that, as a
result of S.B. 1437’s changes to the Penal Code, he could not
presently be convicted of second degree murder. The court said,
“I’m taking into consideration that [appellant] was aware of the
knife that was used by Mr. Rey in perpetration of the . . .
stabbing; [and] that [appellant] purportedly said, ‘stick him, stick
him’ during the stabbing or prior to the stabbing . . . .”
S.B. 1437
“Under the felony-murder rule as it existed prior to Senate
Bill 1437, a defendant who intended to commit a specified felony
could be convicted of murder for a killing during the felony, or
attempted felony, without further examination of his or her
mental state. [Citation.] . . . [¶] Independent of the felony-
murder rule, the natural and probable consequences doctrine
rendered a defendant liable for murder if he or she aided and
abetted the commission of a criminal act (a target offense), and a
principal in the target offense committed murder (a nontarget
offense) that, even if unintended, was a natural and probable
consequence of the target offense. [Citation.]” (People v.
Lamoureux (2019) 42 Cal.App.5th 241, 247-248; see also People v.
Chiu (2014) 59 Cal.4th 155, 158 [“‘under the natural and
probable consequences doctrine, an aider and abettor is guilty not
only of the intended crime, but also “for any other offense that
was a ‘natural and probable consequence’ of the crime aided and
abetted”’”].)
In S.B. 1437 the Legislature declared, “It is necessary to
amend the felony murder rule and the natural and probable

7
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).)
To achieve this goal, S.B. 1437 amended section 189, insofar as it
pertains to the felony-murder rule, to add subdivision (e), which
provides: “A participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a) in which a death
occurs 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 indifference to human life, as described
in subdivision (d) of Section 190.2.” (Stats. 2018, ch. 1015, § 3.)
S.B. 1437 also amended section 188 to add subdivision
(a)(3), which 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 person based solely on his or her participation in a
crime.” (Stats. 2018, ch. 1015, § 2.) The Legislature declared, “A
person’s culpability for murder must be premised upon that
person’s own actions and subjective mens rea.” (Id., § 1, subd.
(g).) Because of the amendment of section 188, an aider and
abettor cannot be convicted of murder under the natural and
probable consequences doctrine. (See People v. Offley (2020) 48
Cal.App.5th 588, 594 (Offley) [“The effect of the new law was to

8
eliminate liability for murder under the natural and probable
consequences doctrine”].)
Section 1170.95, added by S.B. 1437, gives retroactive effect
to the changes in sections 188 and 189. It provides, “A person
convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court
that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining
counts when” certain conditions apply. (§ 1170.95, subd. (a).)
One of the conditions is that “[t]he petitioner could not be
convicted of first or second degree murder because of changes to
Section 188 or 189 made [by S.B. 1437] effective January 1,
2019.” (Id., subd. (a)(3).) The petition must include a declaration
by the petitioner showing that he is eligible for the relief afforded
by section 1170.95. (Id., subd. (b)(1)(A).)
“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 [section 1170.95]. . . . 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.”
(§ 1170.95, subd. (c), italics added.) “Within 60 days after the
order to show cause has issued, the court shall hold a hearing to
determine whether to vacate the murder conviction and to recall
the sentence and resentence the petitioner . . . .” (Id., subd.
(d)(1).) “At the hearing . . . , the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing. . . . The prosecutor and
the petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.” (Id., subd.
(d)(3).)

9
 Meaning of “Prima Facie Showing”
Section 1170.95, subdivision (c) requires a petitioner to
make a “prima facie showing” of entitlement to relief. “A prima
facie showing is one that is sufficient to support the position of
the party in question.” (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 851.) “‘[P]rima facie evidence is that which
suffices for the proof of a particular fact, until contradicted and
overcome by other evidence. It may . . . be contradicted, and
other evidence is always admissible for that purpose.’” (In re
Raymond G. (1991) 230 Cal.App.3d 964, 972, quoting from Vaca
Valley & C.L. Railroad v. Mansfield (1890) 84 Cal. 560, 566.)
Thus, in determining whether the petitioner has made a prima
facie showing of entitlement to relief under section 1170.95, the
trial court is not required to accept the allegations in the petition
as true. “It would be a gross misuse of judicial resources to
require the issuance of an order to show cause [under section
1170.95, subdivision (c)] . . . 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.” (Couzens, Bigelow & Prickett,
Sentencing California Crimes (The Rutter Group Oct. 2019
update) § 23:51, p. 5.)
Section 1170.95, subdivision (c) suggests that a petitioner’s
allegations may be contradicted. The subdivision says, “The
prosecutor shall file and serve a response within 60 days of
service of the petition . . . .” The prosecutor’s response would be
of little utility if the trial court must take the petitioner’s
allegations at face value in determining whether he has made a
prima facie showing of entitlement to relief.

10
 Standard of Review
Whether a petitioner has made the requisite prima facie
showing is a predominantly legal question. We therefore
independently review the trial court’s ruling that appellant failed
to make a prima facie showing. (See Smiley v. Citibank, N.A.
(1995) 11 Cal.4th 138, 146 [“Independent review is called for
when the underlying determination involves a purely legal
question or a predominantly legal mixed question”]; State v.
Ernst (2005) 283 Wis.2d 300, 311 [“Whether a party has met the
burden of establishing a prima facie case presents a question of
law which we review de novo”].)
The Trial Court Properly Considered the
Statement of Facts in our 2001 Opinion
Appellant contends that, in ruling that he had not made a
prima facie showing of entitlement to relief under section
1170.95, the trial court improperly relied on the statement of
facts in our 2001 opinion. We disagree. At the evidentiary
hearing conducted after the trial court has issued an order to
show cause, “[t]he prosecutor and the petitioner may rely on the
record of conviction . . . to meet their respective burdens.” (Id.,
subd. (d)(3).) It follows that, in determining whether the
petitioner has made a prima facie showing of entitlement to
relief, the court may consider the record of conviction. “A court of
appeal opinion . . . is part of the appellant’s record of conviction.
[Citations.] Accordingly, it [is] proper for [us] to consider our
[prior] opinion . . . 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.” (People v.
Verdugo (2020) 44 Cal.App.5th 320, 333 (Verdugo), review
granted Mar. 18, 2020, S260493; see also People v. Lewis (2020)

11
43 Cal.App.5th 1128, 1136, fn. 7, review granted Mar. 18, 2020,
S260598 [for purposes of section 1170.95, “[t]he record of
conviction includes a reviewing court’s opinion”];3 People v.
Trujillo (2006) 40 Cal.4th 165, 180-181 [“an appellate court
decision . . . can be relied upon to determine the nature of a prior
conviction because it may disclose the facts upon which the
conviction was based. [Citation.] We held in [People v.] Woodell
[(1998) 17 Cal.4th 448, 457,] ‘that appellate opinions, in general,
are part of the record of conviction that the trier of fact
may consider in determining whether a conviction qualifies under
the sentencing scheme at issue’ ”]; Woodell, supra, at p. 457 [“If
the appellate court did state the pertinent facts, a trier of fact is
entitled to find that those statements accurately reflect the trial
record”]; People v. Hicks (2014) 231 Cal.App.4th 275, 286 [“the
appellate opinion is part of the record of conviction which the
court properly used in determining defendant's eligibility” for
resentencing under the Three Strikes Reform Act of 2012]; In re

3 In Lewis the Supreme Court limited briefing and
argument to two issues, only one of which is relevant to the
present appeal: “May superior courts consider the record of
conviction in determining whether a defendant has made a prima
facie showing of eligibility for relief under Penal Code section
1170.95?” (People v. Lewis (Mar. 18, 2020, No. S260598) [2020
Cal. LEXIS 1946, at *1].) In Verdugo further action was
“deferred pending consideration and disposition of a related issue
in [Lewis].” (People v. Verdugo (Mar. 18, 2020, No. S260493)
[2020 Cal. LEXIS 2057, at *1].) Pending review and filing of the
Supreme Court’s opinion, Lewis and Verdugo have “no . . .
precedential effect, and may be cited for potentially persuasive
value only.” (Cal. Rules of Court, rule 8.1115(e)(1).)

12
Richardson (2011) 196 Cal.App.4th 647, 667 [“Our opinion on the
1992 evasion conviction stated petitioner's victims were
occupants of a mobilehome that was damaged by petitioner’s
crash. Our opinion is evidence in the record of conviction that
establishes the victims of the 1992 evasion conviction were not
accomplices, and therefore the evasion conviction qualifies as a
prior strike”].)
The trial court’s consideration of our prior opinion’s
statement of facts was especially appropriate because the opinion
was attached as “Exhibit A” to appellant’s petition. In his
declaration in support of the petition, appellant stated, “A version
of the statement of the case and facts is attached hereto as
Exhibit A.”
Jury Instructions
The jury instructions set forth two theories upon which the
jury could have convicted appellant of second degree murder: 1)
he aided and abetted an assault likely to produce great bodily
injury, and the murder of Mosqueda was a natural and probable
consequence of that crime; 2) he conspired to commit an assault
likely to produce great bodily injury, and the murder of Mosqueda
“was a natural and probable consequence of the agreed upon
criminal objective of that conspiracy.” The jury was not
instructed that it could convict appellant of murder if it found
that he had directly aided and abetted the murder by telling Rey
to stab Mosqueda. Thus, the jury necessarily convicted appellant
of murder under the natural and probable consequences theory,
which is no longer a valid theory because of S.B. 1437’s
amendment of section 188. (Offley, supra, 48 Cal.App.5th at p.
594.)

13
 The jury instructions show that appellant satisfied the first
criterion for section 1170.95 relief – he was “convicted of . . .
murder under a natural and probable consequences theory.” (Id.,
subd. (a).) The instructions do not show that he made a prima
facie showing of the last criterion – he “could not be convicted
of . . . murder because of changes to Section 188 . . . made [by S.B.
1437] effective January 1, 2019.” (Id., subd. (a)(3).) The absence
of a jury instruction on murder based on a theory of direct aiding
and abetting does not mean that appellant could not presently be
convicted of murder under this theory.
Appellant Failed to Make a Prima Facie Showing that
He Could Not Be Convicted of Second Degree Murder
Based on our 2001 opinion’s statement of facts, under S.B.
1437 appellant could still be convicted of second degree murder
because he directed Rey to stab Mosqueda. This makes appellant
a direct aider and abettor of the killing. The natural and
probable consequences doctrine does not apply to this class of
defendants. “Liability for intentional, target offenses is known as
‘direct’ aider and abettor liability; liability for unintentional,
nontarget offenses is known as the ‘“‘natural and probable
consequences’ doctrine.”’” (In re Loza (2018) 27 Cal.App.5th 797,
801.) “[S.B. 1437] did not . . . alter the law regarding the criminal
liability of direct aiders and abettors of murder because such
persons necessarily ‘know and share the murderous intent of the
actual perpetrator.’ [Citations.] One who directly aids and abets
another who commits murder is thus liable for murder under the
new law just as he or she was liable under the old law.” (Offley,
supra, 48 Cal.App.5th at pp. 595-596.)4

4 CALCRIM No. 401 is the current jury instruction for
direct aiding and abetting. It provides in relevant part: “To

14
 In his declaration in support of the petition for relief under
S.B. 1437, appellant claimed that he was not a direct aider and
abettor. He alleged, “I was convicted of second degree murder
pursuant to the natural and probable consequences doctrine . . . .”
“I could not now be convicted of . . . second degree murder
because of changes made [t]o Penal Code section 188 . . . .” “I did
not, with the intent to kill, aid, abet, counsel, command, induce,
solicit, request, or assist the actual killer in the commission of
murder . . . .”
In reply to the People’s opposition to the petition,
appellant’s counsel presented a factual scenario contrary to the
statement of facts in our 2001 opinion: “During the assault, one
of the attackers, Mr. Rey, stabbed the victim with a knife,
causing death. [Appellant] had no knowledge that Mr. Rey was
carrying a knife before the attack. At no point did [appellant]
encourage Mr. Rey to ‘stick’ or ‘stab’ the victim. [Appellant] did
not intend that the victim be killed.”
The Attorney General recognizes that “[t]he evidence does
not appear to support appellant’s . . . contention . . . that he could
not be convicted of murder under . . . amended section 188.” The
Attorney General explains: “The stabbing . . . was not
spontaneous or accidental, but occurred only after appellant’s

prove that the defendant is guilty of a crime based on aiding and
abetting that crime, the People must prove that: 1. The
perpetrator committed the crime; 2. The defendant knew that the
perpetrator intended to commit the crime; 3. Before or during the
commission of the crime, the defendant intended to aid and abet
the perpetrator in committing the crime; AND 4. The defendant's
words or conduct did in fact aid and abet the perpetrator's
commission of the crime.”

15
encouragement and instigation and during a seven-to-one beating
of the victim. Based on this evidence, it is clear appellant was a
direct aider and abettor who acted either with express malice, or
at least with implied malice, i.e., he intended to perform an act he
knew presented a danger to the life of another but acted in
conscious disregard of that danger.”
“However,” the Attorney General continues, “there appears
to be no reason why as a matter of law such a claim [appellant’s
claim that he could not be convicted of murder under amended
section 188] must fail based on appellant’s record of
conviction . . . .” “Here, neither the jury instructions nor the
verdicts indicate that appellant was necessarily convicted of
murder based on a theory of actual malice as required by . . .
amended section 188 for a direct aider and abettor.” “The trial
court’s denial of appellant’s petition was predicated on
consideration of the facts of the crime and finding that he could
nevertheless be convicted of murder under a currently valid
theory. Although that is the correct question, it necessarily
involves the weighing of facts and evidence that must be done at
a section 1170.95, subdivision (d)(3) evidentiary hearing[, which
is conducted only after the petitioner has made a prima facie
showing of eligibility].” “In short, if . . . the superior court
discovers that the record of conviction shows ‘as a matter of law’
that petitioner’s averments are false and that he is ineligible for
relief, an order to show cause must not issue. [Citation.]
Otherwise, the superior court must issue an order to show cause
and permit a hearing to determine the facts.” “[T]he trial court
erred because the facts set forth in this Court’s prior opinion did
not demonstrate as a matter of law that appellant was ineligible.”

16
 The Attorney General has misconstrued section 1170.95.
For purposes of determining whether a petitioner has made a
prima facie showing of eligibility for relief, the statute does not
require the trial court to accept the petitioner’s averments unless
“the record of conviction shows ‘as a matter of law’ that
petitioner’s averments are false and that he is ineligible for
relief.” The Attorney General is reading into the statute a
limitation neither expressly nor impliedly required by its
language. “Both [the California Supreme] [C]ourt and the high
court have cautioned against reading into a statute language it
does not contain or elements that do not appear on its face.”
(Martinez v. Regents of University of California (2010) 50 Cal.4th
1277, 1295.)
Section 1170.95 clearly and unambiguously requires a
prima facie showing that the petitioner “could not be convicted of
. . . second degree murder because of changes to Section 188 . . . .”
(Id., subd. (a)(3), italics added.) “Could” is “used . . . as an
alternative to can suggesting less force or certainty.” (Webster’s
3d New Internat. Dict. (1981) p. 517.) In view of the evidence
that appellant directed Rey to “stick” the victim with a knife, as a
matter of law appellant could be convicted of second degree
murder as a direct aider and abettor despite the changes to
section 188.
The command to stab Mosqueda was given by appellant.
He was the only person present who knew Rey had a knife. Rey
displayed the knife to him while appellant was driving Rey to the
Paso Robles party. Nevertheless, it is possible that the jury did
not credit the witnesses who testified that they had heard

17
appellant say, “Stick him. Stick him.”5 It is also possible that the
jury believed appellant made this statement but intended only to
wound Mosqueda, not kill him. But we should not speculate
what the jury might have believed. The jury neither expressly
nor impliedly found that appellant did not harbor the specific
intent to kill when he allegedly told Rey to stab Mosqueda. In
the absence of such a finding, appellant could be convicted of
murder as a direct aider and abettor because a reasonable trier of
fact could find beyond a reasonable doubt that he said, “Stick
him. Stick him,” and that he intended to kill Mosqueda when he
made this statement.
We need not resort, as the Attorney General claims, to a
“weighing of facts and evidence” to reach this conclusion. If the

5 In his opening brief appellant asserts: “[I]n a chaotic
scene populated by many people, a number of whom were
involved in the assault and related fracases, only two witnesses
claimed to have heard the damning statement. One of these was
Calhoun, a man who demonstrably ‘hated’ appellant, and had a
history of antagonism towards him, including the witness’
previous attack on appellant’s car with a baseball bat. . . . The
other was Rey, the actual killer, who was upset at appellant for
having identified him to police . . . .” Calhoun and Rey both
testified at trial. During closing argument, appellant’s counsel
told the jury: “The only other person [besides Calhoun] that says
anything about that [appellant’s alleged statement, ‘Stick him.
Stick him’] was David Rey. I submit to you David Rey found a
convenient reason and a way to try to spread some blame out.”
“Mr. Rey never told a soul about that until the time of trial. . . .
[¶] If it was credible, why didn’t Mr. Rey bring it up earlier?
Why didn’t he say to anybody he heard it? He only picked up on
that after Mr. Calhoun testified, and that was a convenient thing
for [Rey] to grab onto.”

18
jury had been instructed on direct aiding and abetting and had
based its murder conviction on this theory, the conviction would
have been upheld on appeal because it would have been
supported by substantial evidence. (See People v. Stanley (1995)
10 Cal.4th 764, 792 [“On appeal we review the whole record in
the light most favorable to the judgment to determine whether it
discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which
a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt”].) Since substantial evidence supports a
murder conviction based on a direct aiding and abetting theory,
appellant’s conclusory allegations in his petition do not constitute
a prima facie showing that he could not be convicted of murder
based on this theory. No weighing of the evidence is involved in
applying the substantial evidence test. (People v. Marsh (1959)
170 Cal.App.2d 284, 288; People v. Otterman (1957) 154
Cal.App.2d 193, 202.)
Our application of the substantial evidence test is
supported by People v. Duke (2020) 55 Cal.App.5th 113. There,
the court considered the nature of the prosecution’s burden at the
evidentiary hearing conducted after the petitioner has made a
prima facie showing of eligibility for relief under section 1170.95.
The court concluded: “The prosecution bears the burden ‘to
prove, beyond a reasonable doubt, that the petitioner is ineligible
for resentencing.’ (§ 1170.95, subd. (d)(3).) The primary
requirement for eligibility for resentencing under section 1170.95
is that ‘[t]he petitioner could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.’ (§ 1170.95, subd. (a)(3).) To carry its
burden, the prosecution must therefore prove beyond a

19
reasonable doubt that the defendant could still have been
convicted of murder under the new law—in other words, that a
reasonable jury could find the defendant guilty of murder with
the requisite mental state for that degree of murder. This is
essentially identical to the standard of substantial evidence, in
which the reviewing court asks ‘ “whether, on the entire record, a
rational trier of fact could find the defendant guilty beyond a
reasonable doubt. . . .”’ [Citation.]” (Id. at p. 123.)
We disagree with the following holding of People v. Drayton
(2020) 47 Cal.App.5th 965, 968, relating to the petitioner’s initial
burden of making a prima facie showing: “We conclude the trial
court should accept the assertions in the petition as true unless
facts in the record conclusively refute them as a matter of law. If,
accepting the petitioner’s asserted facts as true, he or she meets
the requirements for relief listed in section 1170.95, subdivision
(a), then the trial court must issue an order to show cause.”
Drayton failed to take into consideration the substantial evidence
test explained above. The trial court should not accept the
petitioner’s assertions as true and issue an order to show cause if
substantial evidence in the record supports a murder conviction
under current law. The petitioner’s assertions need not be
“conclusively refut[ed] . . . as a matter of law.” (Ibid.)
Appellant’s status as a direct aider and abettor is
supported by evidence in addition to his statement, “Stick him.
Stick him.” Appellant was a member of Paso 13, a criminal street
gang. According to the statement of facts in our 2001 opinion,
“Paso 13 put out a ‘green light’ on Mosqueda,” a former associate
of the gang who was friendly with members of “a rival gang that
was engaged in ‘warfare’ with Paso 13.” The “green light” “meant
that [Mosqueda] was ‘free game’ to kill.” (Garcia, supra,

20
B126854, at p. 2; see People v. Parrish (2007) 152 Cal.App.4th
263, 278 [“a gang member . . . may be made subject of a
‘green light,’ which . . . is authorization from authority figures in
the gang to kill that person”].) Since Mosqueda had been “green-
lighted” by Paso 13 and appellant was a member of the gang, it is
reasonable to infer that appellant intended to kill Mosqueda
when he directed Rey to stab the victim. In addition, since Rey
was also a member of Paso 13 and therefore must have known
that Mosqueda had been “green-lighted” by the gang, it is
reasonable to infer that appellant believed that Rey would
interpret his “stick him” command as an order to kill. The jury
found true allegations that appellant and Rey had committed the
murder for the benefit of a criminal street gang. (§ 186.22, subd.
(b)(1).)
Moreover, appellant’s conduct after the stabbing indicates
that he harbored an intent to kill. Appellant must have seen Rey
stab Mosqueda four times in the chest. Appellant said that Rey
had stabbed Mosqueda “‘penitentiary style, real quick.’” (Garcia,
supra, B126854, at p. 4.) Although appellant should have known
that Mosqueda was mortally wounded, he did not express shock
or dismay. Instead, he taunted the dying Mosqueda. Appellant
said, “‘Now what’s up dreamer? . . . Now you ain’t talking.
You’re not saying nothing now, are you?’” (Id. at p. 4.) Later that
night, appellant expressed unqualified approval of the killing:
“[Appellant] said that Rey ‘had got his stripes.’ This meant that
Rey had earned respect from other gang members and ‘was up at
the top with the big boys . . . .’” (Id. at p. 5.)
Appellant also could presently be convicted of murder
under a theory of implied malice. “Implied malice does not
require an intent to kill. Malice is implied when a person

21
willfully does an act, the natural and probable consequences of
which are dangerous to human life, and the person knowingly
acts with conscious disregard for the danger to life that the act
poses.” (People v. Gonzalez (2012) 54 Cal.4th 643, 653.) S.B.
1437 did not repeal the law imposing criminal liability for
implied malice murder.
Appellant willfully participated in a brutal gang assault
upon a person who had been “green-lighted” by the gang. He told
another gang member to stab the victim. The natural and
probable consequences of appellant’s acts were dangerous to
human life, and the evidence supports a finding that he acted
with conscious disregard for human life. (See People v. Guillen
(2014) 227 Cal.App.4th 934, 983-992 [evidence sufficient to
convict jail inmates of implied malice murder because they
participated in a brutal assault upon another inmate who was
believed to be a despised child molester].)
If appellant has made a prima facie showing of entitlement
to relief under section 1170.95, almost every defendant convicted
of murder who, like appellant, “artfully pleads” his section
1170.95 petition in conclusory language, and who was not the
actual killer, gets an evidentiary hearing where he can retry the
case. In evaluating whether or not a petitioner has made a prima
facie showing, the trial court must utilize common sense. It is
not required to accept a petitioner’s conclusory declarations that
conflict with the evidence presented at trial.
There is a gatekeeping function to be performed here. (See
Verdugo, supra, 44 Cal.App.5th at p. 331 [section 1170.95
“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

22
resentencing process”].) Once a petitioner makes a prima facie
showing, the evidentiary gate is open since there appears to be no
limit on retrying the case. The newly enacted statute allows the
“prosecutor and the petitioner” to “offer new or additional
evidence.” (§ 1170.95, subd. (d)(3).) The burden is on the
prosecutor to “prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (Ibid.)
The gate in the instant matter should remain closed. The
ameliorative statute was not designed to benefit a gang member
who participated in a brutal gang assault upon a helpless victim
“green-lighted” by the gang and who, according to the trial
testimony of percipient witnesses, directed the actual killer to
stab the victim. Despite appellant’s averment in his petition that
he “did not, with the intent to kill, aid [or] abet . . . the actual
killer,” substantial evidence supports a murder conviction based
on a direct aiding and abetting theory. Appellant therefore did
not carry his burden of making a prima facie showing that he
could not presently be convicted of murder because of changes to
section 188 made by S.B. 1437.
Conclusion
In determining whether a petitioner has made a prima
facie showing of entitlement to relief under section 1170.95, the
courts should not ignore the evidence in the record of conviction
that shows the petitioner is ineligible for relief. Where, as here,
the record of conviction contains substantial evidence based on
which a reasonable trier of fact could presently find petitioner
guilty of murder despite the changes made by S.B. 1437, it would
be a waste of judicial resources to require a full-blown
evidentiary hearing at which the court may rely on the record of
conviction. (§ 1170.95, subd. (d)(3).) Accordingly, the trial court

23
did not err in refusing to issue an order to show cause and
conduct an evidentiary hearing.
Disposition
The order denying appellant’s petition for relief under
section 1170.95 is affirmed.
CERTIFIED FOR PUBLICATION.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.

24
YEGAN, Concurring:
The Court of Appeal should not exalt form over substance
and we should not require the Superior Court to participate in a
“fool’s errand.” By “fool’s errand,” I mean that the goal is, in all
probability, unattainable. In its zeal to “right” what it perceives
is to be “wrong,” the Legislature allows a retroactive, and
theoretical remedy for some defendants convicted of murder.
This has severe adverse consequences to the administration of
justice. Even though in its infancy, the courts are already
deluged with petitions to “retry” some murder cases. There are
hundreds, if not thousands, of these types of cases.
The theoretical hearing may extend for days, perhaps even
longer, and there appears to be no limitation on what a petitioner
can introduce as “new” evidence to obtain relief. (Pen. Code, §
1170.95, subd. (d)(3).) A literal and expansive reading of the
statute does not foreclose a petitioner from introducing alibi,
mental defenses, duress, and any other evidence to impeach
either express or implied factual findings in the earlier trial. In
my view, this has not been properly thought out. The
Legislature’s decision to provide for retroactivity is akin to what
Justice Macklin Fleming referred to as: “The moving finger
rewrites the past.” (Fleming, The Price of Perfect Justice (1974)
pp. 13-21.) Our criminal courts are already over-burdened and to
now add new remedies to impeach presumptively correct final
judgments seems counter-productive. And with the passage of
time, here 22 years, the People will have evidentiary problems in
carrying it’s beyond a reasonable doubt burden of proof.
There must, of necessity, come a time when litigation
should cease. This should, at the very least, be recognized and
considered by the Legislature before it “tinkers” with long final

1
judgments. Perhaps the perceived problem could have been
remedied administratively by relaxing parole rules or simply
changing the punishment for some murders. As Justice Fleming
has said, “An important consequence of the development of
retroactivity has been the blurring of the authority of a final
judgment. The sharp focus of a judgment as a final
determination in an action of the right of the parties has faded
into an ambiguous depiction rendered in the style of subjective
impressionism.” (Fleming, The Price of Perfect Justice, supra, at
pp. 19-22.) Perhaps a subsequent Legislature will want to
further cut back on murder rules. Are we again ordered to
conduct a further round of evidentiary hearings in the pursuit of
“perfect justice?”
The concept of the “finality of judgment” should be a goal of
the criminal justice system. A judgment in a criminal action
should not have the “‘semblance’” of finality. (In re Clark (1993) 5
Cal.4th 750, 765-766.) “‘[W]ithout finality, the criminal law is
deprived of much of its deterrent effect.’” (In re Harris (1993) 5
Cal.4th 813, 831.) As Justice Harlan has said in his concurring
in part, dissenting in part in Mackey v. United States (1971) 401
U.S. 667, 691, “No one, not criminal defendants, not the judicial
system, not society as a whole is benefited by a judgment
providing a man shall tentatively go to jail today, but tomorrow
and every day thereafter his continued incarceration shall be
subject to fresh litigation . . . .” (See In re Harris, supra, at p.
831.) The California Legislature did not need this admonition.
Even though this is remedial legislation which should be
liberally construed, there must, of necessity be some limit to the
statute or else the Legislature would not have enumerated the
exceptions to the new statute. And, as indicated, petitioner can

2
seek to introduce “new” evidence. This too, of necessity, should
be subject to reasonable limits. (See Evid. Code, § 352.) And, as
indicated in the majority opinion, there is a gate keeping function
at play here. The gate should not be opened except upon a prima
facie showing.
Now, what are the “new” facts petitioner would attempt to
prove? Petitioner would tender an innocent explanation for the
historical evidence. Let us assume that he admits to being
present at the scene of the crime. He would minimize his
involvement with the gang, and say that he was unaware of the
“green light.” He did not go on a hunt to execute the “green
light.” He would deny that he punched or kicked the victim. He
would also deny that he directed the stabbing. He would deny
having taunted the victim. He would deny having congratulated
the actual cohort who did the stabbing. He would say that he did
not intend that the victim to be killed. He was “merely present.”
Perhaps petitioner could come up with another or further
explanation. Any such explanation will be 1. At variance with
the historical record; and 2. Be far-fetched. It would not comport
with common sense or how a street gang operates. Appellant is
not entitled to a retrial of his case.
Final Thoughts
I have been watching the flurry of cases where superior
court judges, all over the state, have ruled that the new statute is
unconstitutional. With the exception of Justices O’Rourke,
Poochigian, and Ramirez, the remaining justices all opine to the
contrary.
The statute has a serious flaw on a theory not previously
raised. The People of the State of California have a
constitutional right to trial by jury in criminal cases. (Cal. Const.

3
art. I, § 16; see, e.g., People v. Washington (1969) 71 Cal.2d 1061,
1086-1087.) This, of course, includes the right to have a jury
decide a case by verdict. The Legislature may not pass a statute
which has the effect of abolishing, curtailing, or interfering an
express constitutional right. In the guise of an “ameliorative”
retroactive resentencing statute, it may have retroactively
interfered with the People’s constitutional right at the initial trial
by voiding the jury verdict. It again may have interfered with the
constitutional right to jury trial by allowing a “retrial” to the
superior court, sitting without a jury.
The Legislature may reduce punishment for crime. It may
even allow the reduction to apply retroactively. But can it
tamper with a constitutional right afforded to the People? I do
not reach any conclusion on this issue on this appeal. A record on
this issue and briefing on this issue, is not here presented. But
make no mistake, this issue lurks beneath the calm surface of a
roiling constitutional sea.
CERTIFIED FOR PUBLICATION.

YEGAN, J.

4
 Jacquelyn H. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Vanessa Place, 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, Idan Ivri, Allison H. Chung, Deputy
Attorneys General, for Plaintiff and Respondent.