People v. Baeza CA2/7

Filed 12/17/20 P. v. Baeza CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B303344

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA170804)
v.

GUSTAVO BAEZA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Larry P. Fidler, Judge. Affirmed.
Marta I. Stanton, 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, Charles S. Lee and Nima Razfar, Deputy
Attorney Generals for Plaintiff and Respondent.
_________________
 Gustavo Baeza appeals from a postjudgment order
summarily denying his petition for resentencing under Penal
Code section 1170.951 as to his prior conviction of second degree
murder. Because the jury was not instructed on felony murder or
the natural and probable consequences doctrine, Baeza was not
eligible for relief. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Killing
We described the killing of Tommy Walker in our prior
opinion in People v. Baeza (Mar. 19, 2001, B129838) [nonpub.
opn.] (Baeza I): “[Bryant] Royal testified at trial that he was
standing in his front yard with his friends Walker, Derrick
Hudson, and Jose Nava when a car drove up. Royal did not see
the car because he was tying his shoes. Hudson said, ‘Run!’ so
Royal ran. Royal heard 15 or 16 gunshots, four of which struck
Walker. [¶] Less than an hour after the shooting, Royal told
Officer Roca that the gunman had a blue steel handgun and
might be a member of the Loco Park gang. [¶] At the police
station, Royal spoke to Detective Williams and wrote a statement
in which he said that Walker was shot by the driver of a new-
looking gold or tan truck that stopped in front of Royal’s house.
Royal wrote that the driver was ‘Big Grumpy,’ a Loco Park gang
member whom he recognized from the neighborhood and a prior
hostile confrontation. Royal described the shooter as Latino, six
feet three inches tall, and weighing 220 to 230 pounds. There
were two other Latino men in the truck.” The parties stipulated

1 All statutory references are to the Penal Code.

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that Baeza was five feet 11 inches and weighed 230 pounds at the
time of his arrest. (Baeza I, supra, B129838.)
Royal initially testified at trial he told Detective Williams
the truth, which the detective wrote down and Royal signed, but
Royal later testified his written statement reflected what
Detective Williams told him to write. Detective Williams
testified at trial she had no knowledge of the circumstances of the
shooting other than that Royal was a witness, and she denied she
told Royal what to write. At trial Detective Pirro testified he and
his partner also interviewed Royal, who identified Baeza as the
shooter and codefendants Ramon Castellanos and Israel Diaz as
the passengers in the truck. Royal told Detective Pirro he had
seen Baeza in the neighborhood about twice a week. A gang card
on file with the police department identified Baeza as “Grumpy.”
An audio recording of Detective Pirro’s interview of Royal was
played for the jury. Royal testified at trial he had told Detective
Pirro and his partner what he heard from Hudson, and he made
up the rest. (Baeza I, supra, B129838.)
Two members of the Harpy gang, which was friendly with
the Loco Park gang, were later apprehended with the handgun
that was used to kill Walker. Baeza, Castellanos, and Diaz had
previously admitted they were members of the Loco Park gang,
and Baeza had tattoos indicating his membership in the gang.
(Baeza I, supra, B129838.)
Nava testified for the defense that he saw the shooting and
Baeza, Castellanos, and Diaz were not involved. Jissel Flores,
the wife of Castellanos, testified that around the time of the
shooting, she saw three men in a gold truck drive by her home,
which was about three blocks from Royal’s house. One of the

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men was her cousin, and none of the defendants was in the truck.
(Baeza I, supra, B129838.)

B. The Trial Court’s Jury Instructions, Baeza’s Conviction,
and the Appeal
The trial court2 instructed the jury with CALJIC No. 3.01
on aider and abettor liability; CALJIC Nos. 8.10 and 8.11 on
murder with malice aforethought and express and implied
malice; and CALJIC Nos. 8.20 and 8.30 on first and second
degree murder.3 The trial court did not instruct the jury on
either felony murder or the natural and probable consequences

2 Judge James M. Ideman. Judge Ideman had retired from
the Los Angeles Superior Court by the time Baeza filed his
petition for resentencing.
3 On September 9, 2020 the People filed a request for judicial
notice asking this court to take judicial notice of the appellate
record in Baeza I. We construed the request as a motion to
augment the record on appeal, which we granted. The court’s
instruction on aider and abettor liability (CALJIC No. 3.01)
provided a person must act “with the intent or purpose of
committing or encouraging or facilitating the commission of the
crime . . . .” The court’s instruction on implied malice (CALJIC
No. 8.11) provided, “Malice is implied when: [¶] 1. The killing
resulted from an intentional act; [¶] 2. The natural
consequences of the act are dangerous to human life; and [¶]
3. The act was deliberately performed with knowledge of the
danger to, and with conscious disregard for, human life.” The
court’s instruction on second degree murder (CALJIC No. 8.30)
defined the crime as “the unlawful killing of a human being with
malice aforethought when the perpetrator intended unlawfully to
kill a human being but the evidence is insufficient to prove
deliberation and premeditation.”

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doctrine. The jury found Baeza guilty of second degree murder
(§ 187, subd. (a)) and found true the allegations Baeza personally
used a firearm (§ 12022.5, subd. (a)) and a principal was armed
with a firearm (§§ 12022, subd. (a)(1)). The trial court sentenced
Baeza to 19 years to life in prison (15 years to life for second
degree murder and the middle term of four years for the personal
use of a firearm).
On appeal, Baeza argued there was insufficient evidence to
show he was involved in Walker’s murder; the trial court abused
its discretion in admitting evidence of a prior shooting of Hudson;
and Baeza was not brought to trial within the statutory deadline.
We rejected Baeza’s arguments and affirmed. As to the
sufficiency of the evidence, we concluded “there was ample
evidence upon which the jury could find beyond a reasonable
doubt that [Baeza] shot Walker.” (Baeza I, supra, B129838.)

C. Baeza’s Petition for Resentencing
On September 26, 2019 Baeza, representing himself, filed a
form petition for resentencing and supporting declaration seeking
to vacate his murder conviction and to be resentenced in
accordance with recent statutory changes relating to accomplice
liability for murder. In his petition, Carroll declared he “could
not now be convicted of 1st or 2nd degree murder because of
changes made to Penal Code §§ 188 and 189, effective January 1,
2019”; he “was convicted of 2nd degree murder under the natural
and probable consequences doctrine or under the 2nd degree
felony murder doctrine and [he] could not now be convicted of
murder because of changes to Penal Code § 188, effective
January 1, 2019”; and “[t]here has been a prior determination by
a court or jury that [he] was not a major participant and/or did

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not act with reckless indifference to human life . . . .” Baeza did
not check the box indicating he “was not the actual killer.” Baeza
requested the court appoint an attorney for him.
In his supporting declaration, Baeza pointed to evidence he
was not the shooter, including testimony at trial from Nava,
Wheeler, Hudson, Beatrice Reynoso, and Estella Reynoso
“showing either that [Baeza] was not there at the scene, or the
description of the shooter did not match [Baeza’s] at the time of
the shooting.” Baeza attached the trial court’s instruction on
express and implied malice and a letter from Hudson, who did
not testify at trial, stating Baeza was not the killer.
On November 5, 2019 the superior court summarily denied
Baeza’s petition for resentencing, explaining, “The jury heard
evidence that the defendant was the actual shooter (this evidence
was in a tape recorded interview played for the jury. The witness
recan[t]ed his I.D. in front of the jury.) [¶] The court has
conducted its prima facie review and finds that [Baeza] was
found to be the actual shooter and is not eligible under [section]
1170.95 . . . .”
Baeza timely appealed.

DISCUSSION

A. Senate Bill No. 1437
On September 30, 2018 Senate Bill No. 1437 (2017-2018
Reg. Sess.) (Senate Bill 1437) was signed into law, effective
January 1, 2019. Senate Bill 1437 was enacted 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

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with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 1; see People v.
Verdugo (2020) 44 Cal.App.5th 320, 325 (Verdugo), review
granted Mar. 18, 2020, S260493; People v. Perez (2020)
54 Cal.App.5th 896, 902 (Perez), review granted Dec. 9, 2020,
S265254.)
New section 188, subdivision (a)(3), 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.” Senate Bill 1437 also added section
189, 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.”
Senate Bill 1437 also provides a procedure in new section
1170.95 for an individual convicted of felony murder or murder
under a natural and probable consequences theory to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder under Senate Bill 1437’s changes to sections 188 and
189. (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 4.) Section 1170.95,

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subdivision (b)(1), provides that the petition “shall be filed with
the court that sentenced the petitioner.” The petition must
include a declaration by the petitioner stating he or she is eligible
for relief under the section, providing the superior court case
number and year of the conviction, and indicating whether he or
she requests the appointment of counsel. (§ 1170.95, subd.
(b)(1).)
As we concluded in Verdugo, the Legislature intended for
there to be a three-step evaluation of a section 1170.95 petition.
(Verdugo, supra, 44 Cal.App.5th at pp. 328, 332-333; see Perez,
supra, 54 Cal.App.5th at p. 903.) “If any of the required
information is missing and cannot be readily ascertained by the
court, ‘the court may deny the petition without prejudice to the
filing of another petition and advise the petitioner that the
matter cannot be considered without the missing information.’
(§ 1170.95, subd. (b)(2).) [¶] If the petition contains all required
information, section 1170.95, subdivision (c), prescribes a two-
step process for the court to determine if an order to show cause
should issue: ‘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 this section. If the
petitioner has requested counsel, the court shall appoint counsel
to represent the petitioner. The prosecutor shall file and serve a
response . . . and the petitioner may file and serve a reply . . . . 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.’”
(Verdugo, at p. 327; accord, Perez, at p. 903; People v. Nguyen
(2020) 53 Cal.App.5th 1154, 1165 (Nguyen) [§ 1170.95, subd. (c),
provides for two prima facie reviews]; People v. Tarkington (2020)
49 Cal.App.5th 892, 900-901, review granted Aug. 12, 2020,

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S263219 (Tarkington); People v. Torres (2020) 46 Cal.App.5th
1168, 1177, review granted June 24, 2020, S262011
[“subdivisions (b) and (c) of [section 1170.95] require the trial
court to make three separate determinations”]; but see People v.
Cooper (2020) 54 Cal.App.5th 106, 123, review granted Nov. 10,
2020, S264684 [once the trial court determines the petition
contains the required information, the court performs a single
prima facie review, and if the defendant makes a prima facie
showing of entitlement to relief, the court issues an order to show
cause].)
“In determining whether the petitioner has made a prima
facie showing that he or she is entitled to relief under section
1170.95, subdivision (c), ‘[t]he trial court should not evaluate the
credibility of the petition’s assertions, but it need not credit
factual assertions that are untrue as a matter of law—for
example, a petitioner’s assertion that a particular conviction is
eligible for relief where the crime is not listed in subdivision (a) of
section 1170.95 as eligible for resentencing. Just as in habeas
corpus, if the record “contain[s] facts refuting the allegations
made in the petition . . . the court is justified in making a
credibility determination adverse to the petitioner.” [Citation.]
However, this authority to make determinations without
conducting an evidentiary hearing pursuant to section 1170.95,
subd. (d) is limited to readily ascertainable facts from the record
(such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of
discretion . . . .’” (Perez, supra, 54 Cal.App.5th at pp. 903-904,
quoting People v. Drayton (2020) 47 Cal.App.5th 965, 980; accord,
Nguyen, supra, 53 Cal.App.5th at p. 1166.)

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 After issuing an order to show cause, the trial 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.” (§ 1170.95, subd. (d)(1).) If
a hearing is held, “[t]he prosecutor and the petitioner may rely on
the record of conviction or offer new or additional evidence to
meet their respective burdens.” (§ 1170.95, subd. (d)(3); see
People v. Lewis (2020) 43 Cal.App.5th 1128, review granted
Mar. 18, 2020, S260598.)4 The prosecution has the burden of
proving beyond a reasonable doubt the petitioner is ineligible for
resentencing. (§ 1170.95, subd. (d)(3).)

B. The Trial Court Did Not Err in Failing To Appoint Counsel
Before Denying Baeza’s Petition for Resentencing
Baeza contends the trial court erred when it summarily
denied his petition for resentencing without first appointing
counsel because he made a prima facie showing in his petition
that he falls within the provisions of section 1170.95. We agree
with the People that Baeza was not eligible for relief because the
jury was not instructed and therefore could not have convicted
Baeza of either felony murder or murder under the natural and
probable consequences doctrine.

4 The Supreme Court in People v. Lewis limited briefing and
argument to the following issues: “(1) 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? (2) When does the right to
appointed counsel arise under Penal Code section 1170.95,
subdivision (c)[?]” (Supreme Ct. Mins., Mar. 18, 2020, p. 364;
People v. Lewis, supra, 43 Cal.App.5th 1128.)

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 As we explained in Verdugo, to determine whether the
petitioner is eligible for relief (the first prima facie review), the
court may examine “documents in the court file or otherwise part
of the record of conviction that are readily ascertainable,”
including “the complaint, information or indictment filed against
the petitioner; the verdict form or factual basis documentation for
a negotiated plea; and the abstract of judgment.” (Verdugo,
supra, 44 Cal.App.5th at pp. 329-330.) We added, “The record of
conviction might also include other information that establishes
the petitioner is ineligible for relief as a matter of law because he
or she was convicted on a ground that remains valid
notwithstanding Senate Bill 1437’s amendments to sections 188
and 189 (see § 1170.95, subd. (a)(3)).” (Id. at p. 330.) Further,
“[a] court of appeal opinion, whether or not published, is part of
the appellant’s record of conviction.” (Verdugo, at p. 333.) We
review the superior court’s ruling that Baeza was ineligible for
relief as a matter of law de novo. (People v. Murillo (2020)
54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978;
Perez, supra, 54 Cal.App.5th at p. 904.)
The jury instructions given by the trial court are part of the
record of conviction. (People v. Soto (2020) 51 Cal.App.5th 1043,
1055, review granted Sept. 23, 2020, S263939 (Soto); People v.
Edwards (2020) 48 Cal.App.5th 666, 674, review granted July 8,
2020, S262481.) Although the jury here was instructed on aider
and abettor liability, it was not instructed on either felony
murder or the natural and probable consequences doctrine. As
the Court of Appeal in Soto concluded in affirming the trial
court’s summary denial of the defendant’s section 1170.95
petition, “[T]he jurors were not provided any instruction on which
they could have found [the defendant] guilty of murder under

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[the natural and probable consequences] doctrine. Rather, under
the instructions, the jury necessarily found Soto culpable for
murder based on his own actions and mental state as a direct
aider and abettor of murder.” (Soto, at p. 1055;5 see Edwards, at
p. 675 [affirming summary denial of § 1170.95 petition where
jury not instructed on felony murder or the natural and probable
consequences doctrine].)
Here, in the absence of instructions on felony murder or the
natural and probable consequences doctrine, the jury could have
convicted Baeza as either the shooter or a direct aider and
abettor of the shooter, but not, as suggested by Baeza, based on a
theory of liability that is no longer valid following Senate Bill
1437’s amendments to sections 188 and 189. We do not credit
Baeza’s averments to the contrary that he is eligible for relief
because he was convicted based on a theory of felony murder or
the natural and probable consequences doctrine. (Perez, supra,
54 Cal.App.5th at pp. 903-904; People v. Drayton, supra,
47 Cal.App.5th at p. 980; Nguyen, supra, 53 Cal.App.5th at
p. 1166.) Although we concluded in Baeza I, supra, B129838 that
“there was ample evidence upon which the jury could find beyond
a reasonable doubt that [Baeza] shot Walker,” we need not

5 The Soto court rejected the argument the reference to the
“‘natural consequences’” of an intentional act in CALJIC No. 8.11
on implied malice showed the defendant had been convicted of
murder based on the natural and probable consequences doctrine,
explaining, “The ‘natural consequences’ language in the
instruction for second degree murder does not transform Soto’s
conviction into one for murder under the natural and probable
consequences doctrine within the meaning of section 1170.95.”
(Soto, supra, 51 Cal.App.5th at p. 1059.)

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determine that Baeza was the actual shooter for us to conclude
he was ineligible for relief as a matter of law.6
Because Baeza failed to make the initial prima facie
showing for relief under section 1170.95, subdivision (c), he was
not entitled to appointed counsel or a hearing. (Tarkington,
supra, 49 Cal.App.5th at pp. 901-902 [because the court
summarily denied the petition at the first prima facie review
stage, “the appointment of counsel was not statutorily required
by section 1170.95”]; Verdugo, supra, 44 Cal.App.5th at pp. 332-
333 [“If, as here, the court concludes the petitioner has failed to
make the initial prima facie showing required by subdivision (c),
counsel need not be appointed.”]; People v. Lewis, supra,
43 Cal.App.5th at p. 1140 [“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 showing that he or
she is entitled to relief.’”].)

6 Although the superior court denied relief based on its
finding Baeza was the actual shooter, we uphold the court’s
ruling if supported by any legal theory. (People v. Smithey (1999)
20 Cal.4th 936, 972.)

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 DISPOSITION

The order denying Baeza’s petition for resentencing under
section 1170.95 is affirmed.

FEUER, J.
We concur:

PERLUSS, P. J.

SEGAL, J.

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