Filed 12/11/20 P. v. Parra CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B299312
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. VA114995)
v.
FRANCISCO ARGENIS PARRA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, John A. Torribio, Judge. Reversed and
Remanded.
Waldemar D. Halka, 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 and Thomas C.
Hsieh, Deputy Attorneys General, for Plaintiff and
Respondent.
____________________________________
INTRODUCTION
In 2014, a jury convicted appellant Francisco Argenis
Parra of first-degree murder, among other offenses, and found
a robbery-murder special-circumstance allegation to be true.
The trial court sentenced appellant to life without the
possibility of parole, plus 40 years. In 2019, defendant filed a
petition for relief under Penal Code section 1170.95, which
provides that persons convicted under theories of felony
murder or murder under the natural and probable
consequences doctrine, and who could no longer be convicted
of murder following the enactment of Senate Bill No. 1437
(SB 1437), may petition the sentencing court to vacate the
conviction and resentence on any remaining counts.1 (Stats.
2018, ch. 1015, § 1, subd. (f).)
The superior court summarily denied appellant’s
petition after reviewing the transcript of his preliminary
hearing. Based on the preliminary-hearing testimony, the
court found that appellant had been a major participant in
the underlying felonies (robbery and burglary), who acted
with reckless indifference to life. It therefore concluded he
was ineligible for relief as a matter of law.
1 Undesignated statutory provisions are to the Penal Code.
2
Appellant challenges the superior court’s ruling on
appeal, arguing the court erred by relying solely on the
preliminary-hearing transcript to deny relief, without
allowing him to respond. He claims he has made a prima
facie showing that he is eligible for relief. The Attorney
General concedes that the court erred in relying on the
preliminary hearing transcript, but claims appellant is
nevertheless ineligible for relief as a matter of law based on
either the jury’s robbery-murder special circumstance finding
or the trial evidence. As appellant notes, however, that
finding predated our Supreme Court’s decisions in People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark
(2016) 63 Cal.4th 522 (Clark), which clarified the law
regarding major participants in an underlying offense who act
with reckless indifference to life. In People v. Torres (2020) 46
Cal.App.5th 1168, 1173 (Torres), review granted June 24,
2020, S262011, our colleagues in Division Five held that a
trial court commits reversible error by summarily denying a
section 1170.95 petition based on the jury’s robbery-murder
special circumstance finding that predates Banks and Clark.
Consistent with our prior decisions on the issue, we reverse
the superior court’s order in light of Torres, and remand for
further proceedings under section 1170.95.
3
BACKGROUND2
In 2012, the Los Angeles District Attorney’s office
charged appellant and his co-defendants, Hector Aguilar
Arciga and Pedro Huerta Zuniga, with the April 2009 murder
of Carlos Zarate (§ 187, subd. (a)), the attempted murder of
Manuel Rojas (§§ 664/187, subd. (a)), assault with a deadly
weapon of Rojas (§ 245, subd. (b)), home invasion robbery of
Zarate, Rojas, Jesus Vasquez, and Martha Gutierrez (§ 211),
and first degree burglary (§ 459). As relevant here, the
information also alleged: that the murder was perpetrated in
the commission of a robbery and a burglary (§ 190.2, subd.
(a)(17)); that appellant personally used a firearm in the
commission of some of the charged offenses (§ 12022.5, subd.
(a); § 12022.53, subd. (b)); and that he personally and
intentionally discharged a firearm and caused great bodily
injury or death in the commission of some of the charged
offenses (§ 12022.53, subd. (d)).
At appellant’s 2014 trial, the People presented evidence
that he and his codefendants had a scheme to rob drug
dealers: after gaining a drug dealer’s trust by making an
initial small purchase, they would set up a larger drug
purchase, during which they would rob the drug dealer of
money and drugs. (Arciga, supra, 2016 Cal.App.Unpub.
LEXIS 1339, at *4-*5.) In this case, the second-purchase
2 We have granted respondent’s request to take judicial notice
of the appellate record in appellant’s prior appeal (People v. Arciga
et al. (Feb. 25, 2016, No. B258201) 2016 Cal. App.Unpub. LEXIS
1339 (Arciga)).
4
robbery triggered a confrontation that resulted in Zarate’s
killing and Rojas’s injury. (Id. at *4-*10.)
At the conclusion of trial, the court instructed the jury
as to the robbery-murder special-circumstance allegation
under CALJIC No. 8.80.1: “If you find that a defendant was
not the actual killer . . . , you cannot find the special
circumstance to be true . . . unless you are satisfied beyond a
reasonable doubt that such defendant[,] with the intent to
kill[,] aided . . . any actor in the commission of . . . murder in
the first degree, or with reckless indifference to human life
and as a major participant, aided . . . the commission of . . .
Robbery or Burglary[,] which resulted in the death of a
human being . . . .”
The jury found appellant guilty as charged. It further
found that appellant personally used a firearm in the
commission of the relevant offenses under section 12022.53,
subdivision (b). The jury reached no verdict on the
allegations that appellant personally discharged a firearm,
causing great bodily injury or death under section 12022.53,
subdivision (d). The trial court sentenced appellant to life
without the possibility of parole, plus 40 years in prison. We
affirmed the judgment in an unpublished opinion. (Arciga,
supra, 2016 Cal.App.Unpub. LEXIS 1339, at *33)
In 2019, appellant filed a petition under section 1170.95
to vacate his murder conviction, alleging he was convicted of
murder under the felony-murder rule, and claiming he could
not be convicted of that offense following SB 1437’s
enactment. He requested the appointment of counsel.
5
The superior court summarily denied the petition in a
minute order: “The court has reviewed the petition and
preliminary hearing transcript: The evidence clearly
demonstrate[d] the petitioner was a major participant in the
robbery. He was not the shooter, but he was armed, displayed
the gun during the robbery and the personal use of a firearm
was found true. He actually struck one of the victims over the
head with the gun.” Appellant timely appealed.
DISCUSSION
A. SB 1437’s Limitation of Accomplice Liability for
Murder and Petitions for Relief under Section
1170.95
The Legislature enacted SB 1437 “to amend 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(f).) SB
1437 amended section 189 to provide that a participant in
qualifying felonies during which a death occurs generally will
not be liable for murder unless that person was (1) the actual
killer, (2) a direct aider and abettor in first degree murder,
acting with the intent to kill, or (3) a major participant in
certain underlying felonies, acting with reckless indifference
6
to human life.3 (§ 189, subd. (e).) SB 1437 further amended
section 188’s definition of malice for purposes of murder to
provide that “[m]alice shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188, subd.
(a)(3).)
SB 1437 also added section 1170.95 to the Penal Code.
This section permits individuals who were convicted of felony
murder or murder under a natural and probable
consequences theory, and who could not be convicted of
murder following SB 1437’s changes to sections 188 and 189,
to petition the sentencing court to vacate the conviction and
resentence on any remaining counts. (§ 1170.95, subd. (a).) A
petition for relief under section 1170.95 must include a
declaration by the petitioner that he is eligible for relief based
on the requirements of subdivision (a), certain procedural
information, and any request for appointment of counsel.
(§ 1170.95, subd. (b)(1).)
If the petition includes the required information,
subdivision (c) of section 1170.95, prescribes “a two-step
process” for the court to determine if it should issue an order
to show cause. (People v. Verdugo (2020) 44 Cal.App.5th 320,
327 (Verdugo), review granted March 18, 2020, S260493.)
The court first “review[s] the petition and determine[s] if the
3 This limitation does not apply “when the victim is a peace
officer who was killed while in the course of the peace officer’s
duties, where the defendant knew or reasonably should have
known that the victim was a peace officer engaged in the
performance of the peace officer’s duties.” (§ 189, subd. (f).)
7
petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section.” (§ 1170.95, subd.
(c).) It then appoints counsel, if requested, and reviews the
petition a second time after briefing by the parties to
determine if the petitioner has established a prima facie case
for relief. (Ibid.; see People v. Lewis (2020) 43 Cal.App.5th
1128, 1140, review granted March 18, 2020, S260598.) If the
court concludes the petitioner has made a prima facie
showing, it must issue an order to show cause. (§ 1170.95,
subd. (c); Verdugo, supra, at 328.)
“Once the order to show cause issues, the court must
hold a hearing to determine whether to vacate the murder
conviction and to recall the sentence and resentence the
petitioner on any remaining counts.” (Verdugo, supra, 44
Cal.App.5th at 327, rev.gr., citing § 1170.95, subd. (d)(1).)
The parties may rely on the record of conviction or present
“new or additional evidence” to support their positions.
(§ 1170.95, subd. (d)(3).)
B. Analysis
Appellant challenges the superior court’s summary
denial of his petition, arguing that he has made a prima facie
showing of entitlement to relief under section 1170.95, and
that the court erred by relying solely on the preliminary
hearing transcript to deny relief, without allowing him to
respond. We review de novo the court’s conclusion that
appellant was ineligible for relief as a matter of law. (People
8
v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted
November 18, 2020, S264978.)
The Attorney General concedes that the superior court
erred by relying on a preliminary hearing transcript in
concluding that appellant was ineligible for relief as a matter
of law. The Attorney General argues, however, that the
superior court’s ruling was nevertheless correct based on
either the jury’s special-circumstances finding or the trial
evidence. We disagree.
The jury’s 2014 robbery-murder special circumstance
finding alone did not render defendant ineligible for relief as a
matter of law. Subdivision (e) of section 189 now provides
that participation in an enumerated felony in which a death
occurs renders a person liable for murder only if the person
was (1) the actual killer; (2) an aider and abettor acting with
the intent to kill; or (3) “a major participant in the underlying
felony [who] acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” Section 190.2,
subdivision (d), in turn, describes a person “who, with
reckless indifference to human life and as a major participant,
aids, abets . . . or assists in the commission of a felony
enumerated in paragraph (17) of subdivision (a) which results
in the death of some person or persons . . . .” Section 190.2,
subdivision (a)(17), lists both robbery and burglary as
qualifying felonies.
The special-circumstance finding in this case indicates
the jury found that appellant was, at the least, a major
participant in the robbery or burglary acting with reckless
9
indifference to human life. However, because the jury
rendered its verdict in 2014, before our Supreme Court’s
decisions in Banks and Clark, this finding does not preclude
appellant from showing that he could not be convicted of
murder following the enactment of SB 1437. (Torres, supra,
46 Cal.App.5th at 1179, rev.gr.) In Torres, the court
explained: “[O]ur Supreme Court’s decisions, clarifying what
it means . . . to be a ‘major participant’ in an underlying
felony and to act with ‘reckless indifference to human life,’
construed section 190.2, subdivision (d) in a significantly
different, and narrower manner than courts had previously
construed the statute.” (Ibid.) Thus, when determining if
appellant “could be convicted today of first degree murder, we
cannot simply defer to the jury’s pre-Banks and Clark factual
findings that [he] was a major participant who acted with
reckless indifference to human life as those terms were
interpreted at the time.” (Ibid. [petitioner’s claim that
evidence presented against him failed to support robbery-
murder special circumstance after Banks and Clark requires
resolution of whether facts “are legally sufficient in light of
Banks and Clark”]; accord, In re Miller (2017) 14 Cal.App.5th
960, 979-980.)
The Attorney General argues Torres was wrongly
decided and urges us to follow People v. Gomez (2020) 52
Cal.App.5th 1 (Gomez). In Gomez, the petitioner appealed
from the summary denial of her section 1170.95 petition and
argued there was insufficient evidence to support the jury’s
pre-Banks and Clark kidnapping and robbery special
10
circumstance findings. (Gomez, supra, at 13.) In rejecting the
contention, the Court of Appeal noted that it had already
upheld the special circumstance findings in a prior appeal
from the judgment. (Id. at 16-17.) It also held that “the
proper procedure for [the petitioner] to challenge her special
circumstance findings based on clarification of the relevant
law in Banks and Clark is to bring a petition for habeas
corpus . . . .” (Id. at 17.)
More recently, our colleagues in Division One disagreed
with Torres, though the court did not “necessarily agree with
all the reasoning in Gomez . . . .” (People v. Galvan (2020) 52
Cal.App.5th 1134, 1142 (Galvan), review granted October 14,
2020, S264284.) Under Galvan, defendants like appellant
would not be entitled to relief under the plain language of
section 1170.95, because the present inability to convict them
of murder was not “‘because of changes’” made by SB 1437
(see § 1170.95, subd. (a)(3) [petitioner entitled to relief
because he “‘could not be convicted of . . . murder because of
changes to Section[s] 188 or 189 made effective” January 1,
2019]), but because of the “clarification of the requirements
for the special circumstance finding in Banks and Clark”
(Galvan, supra, at 1142). The Galvan court agreed with
Gomez that petitions under section 1170.95 are not “proper
vehicle[s]” for challenging a special-circumstance finding.
(Galvan, at 1141.)
Mindful of the conflicting caselaw, we continue to follow
Torres. Appellant’s section 1170.95 petition seeks to have his
“murder conviction vacated and to be resentenced” on any
11
remaining counts. (§ 1170.95, subd. (a); see People v. York
(2020) 54 Cal.App.5th 250, 260 [“[o]ur analyses in Torres and
[People v.] Smith [(2020) 49 Cal.App.5th 85, review granted
July 22, 2020, S262835,] recognized that section 1170.95
permits a petitioner to challenge a murder conviction”(italics
omitted)].) Because a petitioner’s entitlement to section
1170.95 relief may require consideration of the verdict
(including any special-circumstance findings), Banks and
Clark remain applicable for those purposes. Given that the
jury was not instructed on the standards as articulated in
Banks and Clark, and that no other finding by the jury
renders appellant ineligible for relief as a matter of law, we
cannot conclude that defendant is categorically precluded
from relief at this preliminary prima facie step.4
Turning to the Attorney General’s second contention, we
may not assess the trial evidence to determine independently
if appellant’s conduct satisfied the Banks and Clark tests for
major participation and reckless indifference to human life.
The court’s role at this stage “is simply to decide whether the
4 The jury’s finding that appellant personally used a firearm
to commit the crime did not, on its own, establish that he was a
major participant acting with reckless indifference to human life.
(Cf. People v. Offley (2020) 48 Cal.App.5th 588, 597-598
[enhancement under section 12022.53, subd. (d), for intentionally
discharging a firearm, “does not establish as a matter of law that a
defendant acted with malice aforethought” and “is therefore
insufficient on its own to justify denying a defendant’s petition
under section 1170.95 at the first stage of review”].) The Attorney
General does not contend otherwise.
12
petitioner is ineligible for relief as a matter of law, making all
factual inferences in favor of the petitioner.” (Verdugo, supra,
44 Cal.App.5th at 329, rev.gr., italics added; see also ibid.
[first prima facie stage “must also be different from the
postbriefing prima facie showing . . . if only in the nature and
extent of materials properly presented to the court in
connection with the second prima facie step”].) Contrary to
the Attorney General’s suggestion, we cannot collapse the
first prima facie step into the second.
Because it is possible that appellant was punished for
conduct that is not prohibited by section 190.2 as construed
under Banks and Clark, we conclude “that the [superior]
court erred in ruling that the pre-Banks and Clark
robbery-murder special circumstance finding[] preclude[s]
[defendant] from relief as a matter of law.” (Torres, supra, 46
Cal.App.5th at 1180, rev.gr.)
13
DISPOSITION
The trial court’s summary denial of appellant’s petition
is reversed, and the matter is remanded for further
proceedings in accordance with section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
14