Filed 11/16/20 P. v. Urquilla 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B298404
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA100645)
v.
DOUGLAS URQUILLA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Curtis B. Rappe, Judge. Affirmed in part;
reversed in part and remanded.
Robert E. Boyce, 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, David E. Madeo and Kristen J.
Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Douglas Urquilla filed a petition
for resentencing under Penal Code section 1170.95, with respect
to his conviction for two counts of first degree murder (Pen. Code,
§ 187).1 The trial court summarily denied the petition on the
basis that defendant was ineligible for relief as a matter of law.
On defendant’s appeal, the Attorney General concedes that
defendant is not ineligible with respect to one count, but argues
that he is ineligible with respect to the other. We agree with the
Attorney General and affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Crimes and Conviction2
In 1994, defendant and his fellow gang member Rudolfo
Corrales shot and killed Martin Jasso and Erika Briseno. It was
believed that Jasso was killed due to his “perceived cooperation
with the police on two murders committed three days earlier by
Corrales.” Briseno was walking with Jasso when defendant and
Corrales attacked Jasso; the inference is that Briseno was killed
because she was a witness to the Jasso murder.
Defendant and Corrales were in a car driven by a third
man when they approached an alley. Corrales told the driver to
stop, and got out of the car. As the driver proceeded down the
alley, he and defendant spotted Jasso and Briseno walking
together. The car pulled up beside the victims. Defendant
“pointed a gun out the window at Jasso and fired two shots.”
1 All undesignated statutory references are to the Penal
Code.
2 Our discussion of the facts is taken from the opinion in
defendant’s prior appeal (People v. Urquilla (April 16, 1999,
B119484 [nonpub. opn.]) which the trial court attached as an
exhibit to its ruling denying defendant’s section 1170.95 petition.
2
Jasso and Briseno fled in different directions. Defendant ran
after Jasso; Briseno had run back toward where Corrales had
exited the car. Corrales shot and killed Briseno. Corrales then
joined defendant and the two approached Jasso, who was lying on
the ground. Two shots rang out, killing Jasso, although it is not
clear which of the two men fired the shots.
In 1997, defendant was convicted of two counts of first
degree murder, with a principal armed enhancement (§ 12022,
subd. (a)(1)). The jury also found the multiple-murder special
circumstance true. Defendant was sentenced to two consecutive
terms of life in prison without the possibility of parole (LWOP),
plus one year.
In 1999, defendant’s conviction was affirmed on appeal.
The appellate opinion indicates that, as to the Jasso murder
(count one), the prosecution had proceeded on the theory that
defendant was either the actual killer or that he had aided and
abetted Corrales in killing him.3 As to the Briseno murder (count
two), the prosecution had argued either that defendant had
directly aided and abetted Corrales in killing her, or that the
3 There is a statement in the opinion that Jasso “was killed
by appellant.” But, later in the opinion, it is explained that the
prosecution proceeded on alternative theories of actual killer and
direct aider and abettor of Corrales. As to this second theory, the
prosecutor specifically argued that defendant “wounded Jasso but
refrained from killing him so that Corrales could fire the final
shot.”
3
Briseno murder was the natural and probable consequence of the
murder of Jasso.4
2. Proceedings on Defendant’s Section 1170.95 Petition
On March 25, 2019, defendant, representing himself, filed a
form petition for resentencing under section 1170.95. He checked
all the relevant boxes entitling him to relief, and requested
appointment of counsel.
On April 9, 2019, the trial court summarily denied the
petition, without the appointment of counsel or a hearing. The
court’s order explained that the court had reviewed the file,
including the appellate opinion and verdict forms. Based on that
information, “and the court’s recollection of the trial evidence,”
the court denied the petition. The court concluded the following
three points were “clear beyond a reasonable doubt”: (1) the
evidence established defendant was the actual killer of Jasso;
(2) although the jury had been instructed on natural and
probable consequences with respect to the murder of Briseno,
there was sufficient evidence of direct aiding and abetting as
well, so defendant could still be convicted of the Briseno murder
under current law; and (3) the multiple-murder special
circumstance establishes that the jury found defendant acted
with the intent to kill.
4 In his reply brief, defendant states that natural and
probable consequences was the only theory pursued with respect
to the Briseno murder. The appellate opinion states otherwise,
and, in response to defendant’s insufficiency of the evidence
argument, found sufficient evidence of both natural and probable
consequences and direct aider and abettor. The prior panel of
this court specifically held there was sufficient evidence that
defendant “did intend to kill, or assist Corrales in killing Briseno
at the same time as Jasso.”
4
Defendant filed a timely notice of appeal.
DISCUSSION
1. Governing Law
In 2018, the Legislature adopted Senate Bill No. 1437 (SB
1437) which, among other things, eliminated the natural and
probable consequences doctrine as it relates to murder. (People v.
Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review
granted Mar. 18, 2020, S260493.) Specifically, SB 1437 amended
section 188 to provide that, except as it relates to felony murder,
which is not at issue in this case, “in order to be convicted of
murder, a principal in a crime shall act with malice
aforethought.” SB 1437 also enacted a new statutory procedure,
codified in section 1170.95, by which a defendant convicted of
murder under the natural and probable consequences doctrine
could seek resentencing under the new, narrower, version of the
law.
Once a section 1170.95 petition is filed, there follows a
multi-step process by which the court first determines whether
the petition is facially complete, and, if so, whether the petitioner
has made a prima facie showing that he falls within the
provisions of statutory eligibility. (People v. Torres (2020)
46 Cal.App.5th 1168, 1177 (Torres), review granted June 24,
2020, S262011.) The materials which the court can review at this
stage include the prior appellate opinion. (People v. Lee (2020) 49
Cal.App.5th 254, 263, review granted July 15, 2020, S262459;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, fn. 7, review
granted Mar. 18, 2020, S260598.) If the court determines the
petitioner is ineligible for relief as a matter of law, the petition is
denied at this first stage; if not, the court proceeds to the next
step. (Torres, supra, 46 Cal.App.5th at pp. 1177–1178.) At the
5
second stage, the court must appoint counsel for the defendant, if
requested, and permit briefing on the issue of the defendant’s
entitlement to relief under the statute. (Verdugo, supra,
44 Cal.App.5th at p. 330.)
2. The Petition Was Properly Denied With Respect to the
Jasso Murder But Not the Briseno Murder
At the first stage, the court’s inquiry is only whether the
defendant is ineligible for relief under section 1170.95 as a
matter of law. (Verdugo, supra, 44 Cal.App.5th at p. 329.) If, for
example, the court’s review of the record of conviction necessarily
establishes the defendant was convicted on a ground that
remains valid after SB 1437’s amendment of murder law, the
petition may be denied at this stage. (Id. at pp. 329–330.) But if
the court “cannot rule out the possibility that the jury relied on
the natural and probable consequences doctrine in convicting” the
defendant of murder, there is no prima facie ineligibility. (People
v. Offley (2020) 48 Cal.App.5th 588, 599.)
Prima facie ineligibility is a legal conclusion we review de
novo. (People v. Verdugo, supra, 44 Cal.App.5th at p. 328, fn. 8.)
A. The Jasso Murder – Count One
Defendant is ineligible for relief as a matter of law with
respect to the Jasso murder. Defendant was not convicted of that
murder under a natural and probable consequences theory. The
appellate opinion confirms that defendant was convicted of the
Jasso murder either as the actual killer or as a direct aider and
abettor of the actual killer, Corrales. Regardless of which of
these theories the jury accepted, defendant is ineligible for relief
6
under the statute with respect to Jasso’s murder.5 (See People v.
Cornelius (2020) 44 Cal.App.5th 54, 58 review granted Mar 18,
2020, S260410 [a defendant convicted as the actual killer is
ineligible for section 1170.95 relief]; People v. Lewis, supra,
43 Cal.App.5th at pp. 1135, 1138–1139 [a defendant convicted for
directly aiding and abetting the actual killer is also ineligible for
section 1170.95 relief].)
B. The Briseno Murder – Count Two
We reach a different conclusion with respect to the Briseno
murder. As the Attorney General concedes, the jury found
defendant guilty of this murder either as a direct aider and
abettor or under the now-abrogated natural and probable
consequences doctrine. Because defendant may have been
convicted under natural and probable consequences, he is not
ineligible as a matter of law.
The trial court concluded to the contrary, reasoning that
since sufficient evidence supported the still-proper theory of
direct aider and abettor liability, defendant’s conviction survived
SB 1437’s invalidation of the natural and probable consequences
doctrine. But the conclusion is not appropriate at the prima facie
stage. The inquiry at this stage is only whether the statute
5 Defendant does not challenge this conclusion on any facts
specific to this case, but simply suggests that, as a general
matter, “the question of whether a petitioner is ineligible for
relief ‘as a matter of law[]’ [citation] may sometimes be
disputable. Only the appointment of counsel, who will review the
petitioner’s case as a zealous advocate on their behalf, can
identify those cases.” Defendant was appointed counsel on
appeal, who nonetheless was unable to identify any reason
defendant may be eligible for section 1170.95 relief with respect
to the Jasso murder.
7
cannot apply as a matter of law. Because defendant may have
been convicted of this count on a natural and probable
consequences theory, the statute may apply. That is all that is
required at this point. Whether the defendant’s conviction of
murdering Briseno might nonetheless survive due to evidence
that was presented to the jury on an alternative theory is an
inquiry for a later stage of the process. (See People v. Drayton
(2020) 47 Cal.App.5th 965, 980 [if the matter proceeds to an order
to show cause, the burden is on the prosecution to establish
beyond a reasonable doubt that defendant is ineligible for
resentencing].)
3. The Multiple-Murder Special Circumstance Does Not
Change the Result
The trial court relied on the multiple-murder special
circumstance as establishing the jury found defendant acted with
the intent to kill. The special circumstance does require intent to
kill when the defendant was not the actual killer. (People v.
Mora and Rangel (2018) 5 Cal.5th 442, 494.) However, that
requirement applies only to one murder, not all of them. “To find
true the multiple-murder special-circumstance allegation, a jury
must find that the defendant has been convicted of at least two
counts of murder, at least of one which must be first degree
murder, and that the defendant either actually killed or
intended to kill at least one of the victims. [Citations.]”6 (Id. at
6 Defendant’s jury was instructed accordingly in the
language of CALJIC No. 8.80.1: “If you are satisfied beyond a
reasonable doubt that the defendant actually killed a human
being, you need not find that the defendant intended to kill in
order to find the special circumstance to be true. [¶] If you find
that a defendant was not the actual killer of a human being, or if
8
p. 495.) That the jury found this special circumstance true does
not mean the jury found defendant acted with the intent to kill
Briseno; it may mean only that defendant actually killed, or acted
with the intent to kill, Jasso.
4. Defendant’s Remaining Arguments are Not
Cognizable
Prior to SB 1437, our Supreme Court held in People v. Chiu
(2014) 59 Cal.4th 155 that natural and probable consequences
aider and abettor liability could support second degree murder,
but not first degree murder. Defendant argues on appeal that his
conviction of the Briseno murder must be reversed under Chiu.
Regardless of whether Chiu has any remaining effect
following SB 1437, it is simply not at issue in this appeal. This is
not a direct appeal of defendant’s conviction or a habeas petition
raising Chiu (see In re Martinez (2017) 3 Cal.5th 1216), but an
appeal of the summary denial of a post-judgment petition for
resentencing under section 1170.95. We conclude that
defendant’s petition should not have been summarily denied with
respect to the Briseno murder; that is the sole relief to which he
is entitled in this appeal.7
you are unable to decide whether the defendant was the actual
killer or an aider and abettor, you cannot find the special
circumstance to be true as to that defendant unless you are
satisfied beyond a reasonable doubt that such defendant with the
intent to kill aided and abetted any actor in the commission of
the murder in the first degree.”
7 For the same reason, defendant’s contention that his
multiple-murder special circumstance should be stricken as only
the Jasso conviction survives must also be rejected as premature.
Defendant also argues that he was improperly charged with two
9
DISPOSITION
The denial of defendant’s section 1170.95 petition is
affirmed as to count one (the Jasso murder) and reversed as to
count two (the Briseno murder). As to count two, the matter is
remanded for the appointment of counsel, the receipt of briefs,
and a hearing in accordance with section 1170.95, subdivision (c).
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
multiple-murder special circumstances and that, as he could only
be charged with one, one of his LWOP terms must be vacated as
an illegal sentence. While this issue is not cognizable on appeal
from the denial of defendant’s section 1170.95 petition,
defendant’s argument is erroneous both as a matter of fact and as
a matter of law. Factually, only a single multiple-murder special
circumstance was charged and found true. Legally, “the trial
court is not precluded from imposing either concurrent or
consecutive LWOP sentences for each of the first degree murder
convictions based on the single multiple-murder special
circumstance.” (People v. Garnica (1994) 29 Cal.App.4th 1558,
1564.)
10