Filed 11/18/20 P. v. Esparza CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B301349
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA048797)
v.
GERMAN ESPARZA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Raul A. Sahagun, Judge. Affirmed.
Melissa Hill, 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, Michael R. Johnsen and Charles S. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Petitioner German Esparza appeals from an order
denying his petition for resentencing pursuant to Penal Code
section 1170.95.1 Section 1170.95 allows eligible petitioners to
obtain retroactive relief based on recent changes in the murder
law. (People v. Lamoureux (2019) 42 Cal.App.5th 241, 248–249.)
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018,
ch. 1015), effective January 1, 2019, “‘amend[ed] the felony
murder rule and the natural and probable 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).)” (People v. Verdugo
(2020) 44 Cal.App.5th 320, 325 (Verdugo), review granted
Mar. 18, 2020, S260493.) “Prior to the enactment of Senate Bill
No. 1437, . . . both the felony-murder rule and the natural and
probable consequences doctrine provided theories under which a
defendant could be found guilty of murder without proof of
malice.” (People v. Lee (2020) 49 Cal.App.5th 254, 260, review
granted July 15, 2020, S262459.)
In this case, the record of conviction conclusively
demonstrates that Esparza was not convicted under either the
felony murder or the natural and probable consequences doctrine.
It necessarily follows that the changes to the murder law did not
affect his conviction. Esparza therefore was ineligible for
resentencing as a matter of law. (People v. Allison (2020)
55 Cal.App.5th 449, 453 (Allison); People v. Lewis (2020)
1 Undesignated statutory citations are to the Penal Code.
2
43 Cal.App.5th 1128, 1138, 1139 (Lewis), review granted Mar. 18,
2020, S260598.) On appeal, Esparza does not argue otherwise.
We reject Esparza’s argument that the trial court could not
summarily deny his petition without appointing counsel for him.
Although the timing of the appointment of counsel under
section 1170.95 is currently pending in our high court, we have
previously held that the right to counsel under section 1170.95
does not arise until a petitioner demonstrates a prima facie
showing that he or she falls within the provisions of
section 1170.95. (Lewis, supra, 43 Cal.App.5th at p. 1140,
review granted.) Pending guidance from our high court,
we continue to adhere to that view. We affirm the trial court’s
order denying Esparza’s petition for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
1. Jurors convicted Esparza and his codefendant
Jorge Rodriguez of first degree murder with several
enhancements
Esparza and codefendant Jorge Rodriguez were charged
with one count of murder with malice aforethought. The People
further alleged that a principal personally discharged a firearm
causing great bodily injury, personally discharged a firearm
and personally used a firearm within the meaning of
section 12022.53, subdivisions (b), (c), (d), and (e)(1) and
section 12022.5, subdivision (a)(1). The People alleged a
section 186.22, subdivision (b)(1) gang enhancement. The People
also alleged that Rodriguez personally used a firearm.
The trial court did not instruct jurors on felony murder or
on the natural and probable consequence doctrine.
Jurors found all allegations true.
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2. This court affirmed Esparza’s conviction
Following an appeal from the judgment of conviction, in
November 2000, this court affirmed the judgment. In our
opinion, we described the facts as follows:
“On the evening of June 5, 1998, Alex Santos was shot and
killed while riding in a car driven by Jesus Gonzalez. Christian
Mayorga and Rogelio Guzman were also passengers in Gonzalez’
car. Mayorga was a gang member. The other two survivors
denied being gang members. Santos was not a gang member, but
he resembled his cousin Edgar Carmona, with whom he lived,
and who was a gang member. Gonzalez’ car was on a street
which formed the boundary between territories controlled by
Mayorga’s gang and a rival gang, 18th Street, to which
defendants belonged.
“The shooting occurred when three people approached
Gonzalez’ car, which was stopped at an intersection, on two
bicycles. The three shooting survivors saw Esparza riding one
bicycle and carrying Rodriguez, who was standing on foot pegs
protruding from the rear axle and holding onto Esparza’s
shoulders. A third man was riding the second bicycle. The two
bicycles drove past Gonzalez’ car and stopped. Rodriguez got off
Esparza’s bicycle, walked back toward the car, and fired. A bullet
shattered the rear window and struck Santos. Rodriguez got
back on Esparza’s bicycle and Esparza pedaled away.”
(People v. Esparza (Nov. 13, 2000, B134514) [nonpub. opn.].)
3. Petition for resentencing
On March 12, 2019, Esparza filed a petition for
resentencing pursuant to section 1170.95. Esparza alleged that
“[a]t trial, I was convicted of 1st or 2nd degree murder pursuant
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to the felony murder rule or the natural and probable
consequences doctrine.” Esparza alleged that he could not now
be convicted of murder because of changes made to sections 188
and 189 effective January 1, 2019. Esparza requested the trial
court appoint counsel for him.
4. The trial court denies the petition for resentencing
Without appointing counsel or holding a hearing, the trial
court denied Esparza’s petition for resentencing, finding that
Esparza failed to establish a prima facie case that he fell within
the ambit of section 1170.95. The court concluded that Esparza
was not convicted based on the felony-murder rule or based on a
natural and probable consequences theory. The court indicated
that in so concluding, it had relied on the appellate opinion
following Esparza’s judgment of conviction.
DISCUSSION
On appeal, Esparza argues prior to denying his
section 1170.95 petition, the trial court was required to appoint
counsel for him. Esparza also contends that denying the petition
without the appointment of counsel violated Esparza’s federal
Sixth Amendment and due process right to counsel. Finally,
Esparza argues that the trial court erred in relying on this court’s
prior appellate opinion.
We first explain why, as a matter of law, Esparza cannot
demonstrate he is eligible for resentencing. We then discuss
Esparza’s remaining arguments seriatim.
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A. Esparza Cannot Make A Prima Facie Showing of
Eligibility for Resentencing
Section 1170.95 “requires a defendant to submit a petition
affirming that he or she: (1) was charged with murder in a
manner ‘that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine’ (§ 1170.95, subd. (a)(1)); (2) was ‘convicted
of’ or pleaded guilty to ‘first degree or second degree murder’
(§ 1170.95, subd. (a)(2)); and (3) ‘could not be convicted of first or
second degree murder because of changes to Section 188 or 189
made’ in Senate Bill No. 1437 (§ 1170.95, subd. (a)(3)).” (Allison,
supra, 55 Cal.App.5th at p. 456.) “Upon receipt of a facially
sufficient petition, the trial court reviews the matter to determine
whether the petitioner has made a prima facie showing that he
or she ‘falls within the provisions’ of the statute. (§ 1170.95,
subd. (c).) If the petitioner meets this requirement, the court
shall appoint counsel for the defendant upon request and allow
for briefing.” (Allison, at pp. 456–457.)
Here, the trial court concluded that Esparza failed to make
a prima facie showing that he fell within the provisions of the
statute. That conclusion was correct, and Esparza does not argue
otherwise. The jury could not have convicted Esparza based
either on felony murder or the natural and probable
consequences doctrine because the trial court did not instruct the
jury on either theory. As a matter of law, Esparza cannot
establish that he “could not be convicted” of murder because of
changes to section 188 or 189. (§ 1170.95, subd. (a)(3).) Esparza
thus failed to demonstrate a prima facie case that he fell within
the provisions of section 1170.95. (Lewis, supra, 43 Cal.App.5th
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at pp. 1138–1139, review granted; see also Verdugo, supra,
44 Cal.App.5th at p. 329, review granted.)
B. The Trial Court Was Not Required to Appoint
Counsel Prior to Concluding that Esparza Was
Ineligible for Resentencing
Esparza argues that the trial court violated section 1170.95
when it concluded that he failed to establish a prima facie
showing without first appointing counsel for him. There is a split
of authority as to when a trial court evaluating a section 1170.95
petition must appoint counsel. In People v. Cooper (2020)
54 Cal.App.5th 106, 112, review granted November 10, 2020,
S264684, the appellate court held that a trial court must appoint
counsel as soon as a petitioner files a facially sufficient petition.
In contrast, this court and numerous other courts have held that
the trial court must appoint counsel only if the petitioner
establishes a prima facie case of eligibility for relief. (See Lewis,
supra, 43 Cal.App.5th at p. 1140, review granted; People v. Offley
(2020) 48 Cal.App.5th 588, 597; see also People v. Tarkington
(2020) 49 Cal.App.5th 892, 899–900 (Tarkington), review granted
Aug. 12, 2020, S263219; Verdugo, supra, 44 Cal.App.5th at pp.
332–333, review granted; People v. Cornelius (2020) 44
Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410.)
As we explained in Lewis: “Given the overall structure of
the statute, we construe the requirement to appoint counsel as
arising in accordance with the sequence of actions described in
section 1170.95[,] subdivision (c); that is, after the court
determines that the petitioner has made a prima facie showing
that petitioner ‘falls within the provisions’ of the statute, and
before the submission of written briefs and the court’s
determination whether petitioner has made ‘a prima facie
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showing that he or she is entitled to relief.’ (§ 1170.95, subd. (c).)
In sum, 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.”
(Lewis, supra, 43 Cal.App.5th at p. 1140, fn. omitted, review
granted.)2 Pending further guidance from our Supreme Court,
we adhere to our decisions in Lewis, holding that the trial court is
not required to appoint counsel until “after the court determines
that the petitioner has made a prima face showing that petitioner
‘falls within the provisions’ of the statute . . . .” (Lewis, at
p. 1140.)
Even if the court erred in denying Esparza counsel, any
error was harmless under any standard of prejudice.3 (People v.
2 In Lewis, we relied on the plain meaning of the statute,
which as explained does not mandate the appointment of counsel
prior to a petitioner’s demonstration of a prima facie case. The
language of section 1170.95 when viewed “as a whole” makes
“clear that counsel need not be appointed before the court
determines the petitioner is eligible for relief.” (Tarkington,
supra, 49 Cal.App.5th at p. 900.)
When the words of a statute are clear, we do not
resort to legislative history. (Quarterman v. Kefauver (1997)
55 Cal.App.4th 1366, 1371.) This court considers extrinsic aids
such as legislative history only if the statute is ambiguous.
(People v. Arias (2008) 45 Cal.4th 169, 177.) We therefore decline
Esparza’s invitation to consider what he claims are part of
section 1170.95’s legislative history: (1) letters written by the
Judicial Council prior to the passage of the legislation; and (2) an
analysis of the Senate Rules Committee.
3 We need not decide in the context of this case whether we
evaluate prejudice under a Watson or a Chapman standard.
8
Law (2020) 48 Cal.App.5th 811, 826, review granted July 8, 2020,
S262490 [alleged error in not appointing counsel harmless
beyond a reasonable doubt].) As a matter of law, Esparza was
ineligible for relief. On appeal, with the assistance of his counsel,
Esparza had full opportunity to present any argument that he
was eligible for relief under section 1170.95 and offered none.
The trial court would have been required to dismiss the petition
regardless of whether it appointed counsel for Esparza;
remand would thus be an idle act. (People v. Edwards (2020)
48 Cal.App.5th 666, 675 (Edwards), review granted July 8, 2020,
S262481.)
C. The Failure to Appoint Counsel Prior to Determining
Esparza’s Eligibility Did Not Violate His Sixth
Amendment Right to Counsel or a Right to Counsel
Under the Due Process Clause
Esparza argues that the prima facie review of his
resentencing petition was a critical stage in the criminal process
requiring the appointment of counsel under the Sixth
Amendment. The Sixth Amendment right to counsel does not
apply to postconviction proceedings. (People v. Rouse (2016)
245 Cal.App.4th 292, 298 (Rouse).) Section 1170.95 petition, a
postconviction proceeding, does not implicate a defendant’s right
to counsel under the Sixth Amendment. (People v. Lopez (2019)
38 Cal.App.5th 1087, 1114–1115, review granted Nov. 13, 2019,
S258175.)
Esparza next argues that “the Fourteenth Amendment Due
Process Clause requires the assistance of counsel in some
(People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. State of
California (1967) 386 U.S. 18, 24.
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criminal proceedings even if the Sixth Amendment does not.”
However, Esparza relies on authority in which a defendant
established a prima facie case for resentencing. (See People v.
Fryhaat (2019) 35 Cal.App.5th 969, 980–981 [due process
requires appointment of counsel when defendant establishes
prima facie cause for postconviction relief]; Rouse, supra, 245
Cal.App.4th at p. 300 [defendant who demonstrated eligibility for
resentencing was entitled to the appointment of counsel].) For
example, in Rouse the “[d]efendant passed the eligibility stage.
The court ruled his petition was meritorious and he was entitled
to be resentenced.” (Rouse, at p. 299.) The authority does not
apply to Esparza, who in contrast to the defendant in Rouse, as a
matter of law, cannot demonstrate he was eligible for sentencing
relief.
Finally, Esparza argues that “[w]hen state law gives a
criminal defendant the expectation of receiving a certain right or
benefit, the denial of that right may have the additional effect of
violating federal due process.” Esparza does not explain how this
principle applies to the current case. To the extent he is trying to
argue that he had an expectation of receiving appointed counsel,
section 1170.95 does not support that expectation. As we have
explained, section 1170.95 affords a petitioner appointed counsel
only if the petitioner establishes a prima facie case. (Lewis,
supra, 43 Cal.App.5th at p. 1140, review granted.) Because
Esparza is ineligible for relief, he could not have had a legitimate
expectation the trial court would have appointed counsel for him.
(Tarkington, supra, 49 Cal.App.5th at p. 908.) As stated in
Lewis, the initial eligibility determination under section 1170.95
is analogous to a determination whether summarily to deny a
habeas corpus petition (Lewis, at p. 1138), to which no
10
constitutional right to counsel attaches. (See McGinnis v.
Superior Court (2017) 7 Cal.App.5th 1240, 1243–1244, fn. 2 [“Any
right to habeas corpus counsel, absent an order to show cause, is
purely statutory . . . .”].)
D. The Trial Court Could Rely on this Court’s Prior
Appellate Opinion; Even if it Erred, Any Alleged
Error Was Harmless
Esparza argues that the description of the facts in our prior
appellate opinion constituted hearsay and was therefore
inadmissible in a section 1170.95 proceeding. Esparza’s
argument is inconsistent with our holding that in evaluating a
section 1170.95 petition, a trial court may consider the prior
opinion on direct appeal. (Lewis, supra, 43 Cal.App.5th at
p. 1138, review granted.) Other cases have reached the same
conclusion. (People v. Garcia (Nov. 4, 2020, B300163)
__ Cal.App.5th ___, ___ [2020 Cal.App.Lexis 1051 at p. *15];
Edwards, supra, 48 Cal.App.5th at pp. 674–675; Verdugo, supra,
44 Cal.App.5th at p. 333, review granted.) Assuming arguendo
the trial court erred in relying on the opinion following Esparza’s
direct appeal, Esparza cannot demonstrate prejudice. Regardless
of the opinion, the jury instructions—standing alone—
demonstrate as a matter of law Esparza was ineligible for relief
under section 1170.95.
Esparza also argues that the appellate opinion following
Esparza’s direct appeal does not conclusively demonstrate
Esparza was not convicted based on a natural and probable
consequences theory. Even so arguendo, the jury instructions
demonstrate as a matter of law that the jury did not rely on a
natural and probable consequences theory. As noted above,
jurors were not instructed on a natural and probable
11
consequences theory. Even if the court erred in relying solely on
the appellate opinion to reach that conclusion, that error was
harmless.
DISPOSITION
The order denying Esparza’s Penal Code section 1170.95
petition for resentencing is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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