People v. Sauceda CA2/6

Filed 1/5/21 P. v. Sauceda CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B301139
(Super. Ct. No. 1434089)
Plaintiff and Respondent, (Santa Barbara County)

v.

SANTOS MANUEL
SAUCEDA,

Defendant and Appellant.

Santos Manuel Sauceda appeals from the trial court’s
denial of his petition for resentencing. (Pen. Code,1 § 1170.95.)
He contends the court erred when it summarily denied the
petition because it: (1) ignored the procedural requirements of
section 1170.95, (2) violated his constitutional right to counsel,
and (3) relied on hearsay statements in our opinion on direct
appeal. We affirm.

1 Unlabeled statutory references are to the Penal Code.
 FACTUAL AND PROCEDURAL HISTORY
In May 2015, a jury convicted Sauceda and four
codefendants of first degree murder (§§ 187, subd. (a), 189, subd.
(a)), and found true a special circumstance allegation that they
committed murder during the commission of a kidnapping
(§ 190.2, subd. (a)(17)(B)).2 (People v. Gonzales (Aug. 7, 2018,
B264384) 2018 WL 3737940 at p. *1 (Gonzales) [nonpub. opn.].)
In a bifurcated proceeding, the trial court found true allegations
that Sauceda had served two prior prison terms (§ 667.5, subd.
(b)). (Gonzales, at p. *1.) It sentenced him to life in state prison
without the possibility of parole plus two years. (Ibid.)
We affirmed the judgment on appeal. (Gonzales,
supra, 2018 WL 3737940 at p. *17.) Among other things, we
concluded that substantial evidence supported the jury’s true
finding on the kidnapping special circumstance allegation
because Sauceda “was a major participant in the kidnapping that
led to the victim’s murder” and “demonstrated reckless disregard
for human life.” (Id. at p. *1; see People v. Clark (2016) 63
Cal.4th 522, 618-623 (Clark) and People v. Banks (2015) 61
Cal.4th 788, 797-803 (Banks).) Specifically, in the months prior
to the murder Sauceda said that the outlook for the victim
“[didn’t] look good.” (Gonzales, at p. *8.) After a codefendant
lured the victim to a house, Sauceda helped to force him into a
back room that had a shower curtain covering the carpeted floor.
(Id. at p. *2.) He then “assisted in a violent and ultimately lethal
attack of long duration during which” a codefendant tortured the

2 We grant the Attorney General’s unopposed request to
take judicial notice of the record and opinion in Sauceda’s
previous appeal. (People v. Garner (2016) 244 Cal.App.4th 1113,
1116, fn. 2; see Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

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victim by looping a belt around his neck and attacking him with a
machete and scissors. (Id. at pp. *7-8.) And though his
codefendants inflicted most of the victim’s injuries, Sauceda
neither restrained them nor provided the victim with any
assistance—despite being in a position to do so. (Id. at p. *7.) He
was later “instrumental” in disposing of the victim’s body. (Id. at
p. *8.)
After his case was final on appeal, Sauceda petitioned
the trial court to resentence him pursuant to section 1170.95. In
his petition, Sauceda declared that: (1) the information filed
against him allowed the prosecution to proceed on a felony
murder theory, (2) he was convicted of first degree felony murder,
(3) he could not now be convicted of first degree murder based on
amendments to sections 188 and 189, and (4) he was not the
actual killer, did not harbor the intent to kill, and was not a
major participant in the underlying kidnapping who acted with
reckless indifference to human life. Sauceda also requested the
appointment of counsel to assist him during the resentencing
process.
The trial court summarily denied Sauceda’s petition
without appointing counsel, concluding that he failed to make a
prima facie showing that he was entitled to relief. The jury found
true the kidnapping special circumstance allegation, which
required proof that Sauceda was a major participant in the
kidnapping who acted with reckless indifference to human life.
In light of that finding—which was upheld on appeal—Sauceda
was ineligible for section 1170.95 resentencing as a matter of law.
DISCUSSION
Section 1170.95’s procedural requirements
Sauceda first contends the trial court’s denial of his

3
section 1170.95 resentencing petition without appointing counsel
violated the statute’s procedural requirements. We disagree.
In 2018, the Legislature enacted Senate Bill No. 1437
(S.B. 1437) to “amend the felony murder rule . . . to ensure that
murder liability is not imposed on a person who [was] 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 accomplish these goals, S.B. 1437 redefined
“malice” in section 188, and narrowed the classes of persons
liable for felony murder under section 189. (Stats. 2018, ch. 1015,
§§ 2-3.) It also added section 1170.95 to the Penal Code, which
permits those convicted of felony murder to petition to have their
murder convictions vacated and to be resentenced on any
remaining counts. (Stats. 2018, ch. 1015, § 4.)
A convicted defendant may petition for resentencing
where the information allowed prosecutors to proceed under a
theory of felony murder, the defendant was convicted of first
degree murder, and the defendant could not now be convicted of
murder under the amendments to sections 188 and 189.
(§ 1170.95, subd. (a).) If the defendant files a petition declaring
that they meet these requirements (id., subd. (b)(1)(A)), the trial
court undertakes a “two-step process” to determine whether they
are eligible for relief (People v. Offley (2020) 48 Cal.App.5th 588,
596 (Offley); see § 1170.95, subd. (c)).
First, the court determines “whether the defendant
has made a ‘prima facie showing [that they] “fall within the
provisions” of the statute.’ [Citation.]” (Offley, supra, 48
Cal.App.5th at pp. 596-597, alterations omitted.) In making that
determination, the court “may examine the record of conviction”

4
(id. at p. 597), including the instructions provided to the jury at
trial and any prior decision on appeal (People v. Gomez (2020) 52
Cal.App.5th 1, 16 (Gomez), review granted Oct. 14, 2020,
S264033). If that examination reveals that the defendant does
not fall within the provisions of section 1170.95 as a matter of
law, the court may summarily deny the petition without
appointing counsel.3 (Offley, at p. 597.)

3 Nearly all decisions published to date are in accord. (See
People v. Swanson (2020) 57 Cal.App.5th 604, 617-618; People v.
Falcon (2020) 57 Cal.App.5th 272, 277-279; People v. Nunez
(2020) 57 Cal.App.5th 78, 90, fn. 5; People v. Roldan (2020) 56
Cal.App.5th 997, 1005; People v. Jones (2020) 56 Cal.App.5th 474,
484-485; People v. Nguyen (2020) 53 Cal.App.5th 1154,
1168; People v. Galvan (2020) 52 Cal.App.5th 1134, 1144, review
granted Oct. 14, 2020, S264284; Gomez, supra, 52 Cal.App.5th at
pp. 15-16, review granted; People v. Soto (2020) 51 Cal.App.5th
1043, 1054, fn. 10, review granted Sept. 23, 2020, S263939;
People v. Tarkington (2020) 49 Cal.App.5th 892, 899-902
(Tarkington), review granted Aug. 12, 2020, S263219; People v.
Lee (2020) 49 Cal.App.5th 254, 262-263, review granted July 15,
2020, S262459; People v. Edwards (2020) 48 Cal.App.5th 666,
673-675, review granted July 8, 2020, S262481; People v. Torres
(2020) 46 Cal.App.5th 1168, 1178 (Torres), review granted June
24, 2020, S262011; People v. Verdugo (2020) 44 Cal.App.5th 320,
327-333 (Verdugo), review granted Mar. 18, 2020, S260493;
People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted
Mar. 18, 2020, S260410; People v. Lewis (2020) 43 Cal.App.5th
1128, 1137-1140, review granted Mar. 18, 2020, S260598.) We
disagree with our colleagues in the First District who have
adopted a contrary view. (See People v. Daniel (2020) 57
Cal.App.5th 666, 673-674; People v. Cooper (2020) 54 Cal.App.5th
106, 118-123, review granted Nov. 10, 2020, S264684.)

5
 If the examination reveals that the defendant may be
eligible for relief, the court must move to the second step of the
process and appoint counsel (if requested) to assist the defendant
in subsequent proceedings. (Offley, supra, 48 Cal.App.5th at p.
597.) The prosecution may then file a response to the petition,
and the defendant may file a reply. (Ibid.) If the moving papers
show that the defendant may be eligible for relief, the court must
“issue an order to show cause and hold a hearing to determine
whether to grant the petition and resentence [them].” (Ibid.)
At that hearing, prosecutors must prove, beyond a
reasonable doubt, that the defendant is ineligible for
resentencing. (§ 1170.95, subd. (d)(3).) In doing so, they “may
rely on the record of conviction or offer new or additional
evidence.” (Ibid.) The defendant may also offer additional
evidence. (Ibid.) If, after presentation of the evidence and
argument, the trial court concludes that prosecutors did not meet
their burden of proof, “the prior conviction, and any allegations
and enhancements attached to the conviction, shall be vacated
and the [defendant] shall be resentenced on the remaining
charges.” (Ibid.)
The record of conviction here reveals that Sauceda is
ineligible for section 1170.95 relief as a matter of law. Before
sending the case to jurors, the trial court instructed them on the
intent required to prove the kidnapping special circumstance
allegation. (Gonzales, supra, 2018 WL 3737940 at p. *8.) That
instruction told jurors that they could convict Sauceda of first
degree murder as an aider and abettor only if prosecutors proved
either that: (1) he participated in the kidnapping with the intent
to kill, or (2) his participation in the kidnapping began before or
during the killing, he was a major participant in the kidnapping,

6
and he acted with reckless indifference to human life.
(CALCRIM No. 703.)
These are the same theories that permit a first
degree felony murder conviction under the amended version of
section 189. (See § 189, subd. (e).) Thus, by finding the
kidnapping special circumstance true, jurors necessarily
determined that Sauceda could still be convicted of murder under
current law. (Gomez, supra, 52 Cal.App.5th at pp. 14-15, review
granted.) Summary denial of his resentencing petition was
accordingly proper. (Ibid.; see also People v. Gutierrez-Salazar
(2019) 38 Cal.App.5th 411, 419-420 [defendant ineligible for
section 1170.95 relief where jury found true a robbery special
circumstance allegation].)
This is true despite the fact that the jury made its
special circumstance finding in May 2015, prior to our Supreme
Court’s decisions in Clark and Banks. Clark and Banks
“construed the meanings of ‘major participant’ and ‘reckless
indifference to human life’ ‘in a significantly different[] and
narrower manner than courts had previously.’ [Citation.]”
(People v. Smith (2020) 49 Cal.App.5th 85, 93, review granted
July 22, 2020, S262835.) Because the jury in Sauceda’s trial did
not have these cases’ guidance, it may have employed an
outdated definition when it made its special circumstance
finding, punishing him for conduct that is no longer prohibited.
(Torres, supra, 46 Cal.App.5th at p. 1180, review granted.) But
we decided Sauceda’s direct appeal in 2018, and applied Clark
and Banks when we upheld the jury’s special circumstance
finding. We thus concluded that that finding was based on
conduct that remains prohibited today. It was therefore proper

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for the trial court to rely on it when it denied Sauceda’s section
1170.95 petition without appointing counsel.
People v. Drayton (2020) 47 Cal.App.5th 965
(Drayton) is not to the contrary. In Drayton, the trial court
determined that the defendant was a major participant in the
underlying felony who acted with reckless indifference to human
life. (Id. at p. 982.) The court made that determination by
evaluating the evidence offered at the preliminary hearing and
making a credibility determination against the defendant. (Id. at
pp. 981-982.) Engaging in such factfinding—as required by Clark
and Banks—prior to issuing an order to show cause was error.
(Id. at p. 982.)
In contrast to what occurred in Drayton, the trial
court here did not engage in any factfinding. Rather, it relied on
our prior opinion—which had already undertaken the analysis
required by Clark and Banks—and found Sauceda ineligible for
section 1170.95 relief as a matter of law. The statute’s remaining
procedural requirements were accordingly inapplicable. (Offley,
supra, 48 Cal.App.5th at p. 597.)
Right to counsel
Sauceda next contends the trial court’s summary
denial of his resentencing petition violated his Sixth Amendment
right to counsel and due process. We again disagree.
The Sixth Amendment guarantees a criminal
defendant the right to counsel at all critical stages of the
proceedings. (Gardner v. Appellate Division of Superior
Court (2019) 6 Cal.5th 998, 1004-1005 (Gardner).) Critical stages
are those “proceedings in which the [defendant] is brought in
confrontation with the state, where potential substantial
prejudice to the [defendant’s] rights inheres in the confrontation,

8
and where counsel’s assistance can help to avoid that prejudice.”
(Ibid.) Included among these proceedings are the trial and initial
appeal. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555.) The
right to counsel also applies in resentencing proceedings. (People
v. Rouse (2016) 245 Cal.App.4th 292, 296, 299-301.)
But it does not apply where, as here, a postconviction
petition does not state a prima facie case for relief. (People v.
Shipman (1965) 62 Cal.2d 226, 232.) This is because the trial
court’s role upon receipt of such a petition is “simply to decide
whether the [defendant] is ineligible for relief as a matter of law,
making all factual inferences in [their] favor.” (Verdugo, supra,
44 Cal.App.5th at p. 329, review granted.) The act of making
that decision cannot be deemed a “critical proceeding” because it
creates no “confrontation with the state . . . where counsel’s
assistance [could] help.” (Gardner, supra, 6 Cal.5th at pp. 1004-
1005.) The court does not exercise its discretion in any way, but
instead makes a decision as a matter of law. Because the
presence of counsel would not contribute to that purely legal
exercise, the Sixth Amendment is not implicated. (Cf. People v.
Howard (2020) 50 Cal.App.5th 727, 740 [section 1170.95 does not
implicate Sixth Amendment right to jury trial].)
We also reject Sauceda’s assertion that due process
requires appointment of counsel at the initial prima facie
determination. Due process requires appointment of counsel in
postconviction proceedings only “if a petition attacking the
validity of a judgment states a prima facie case leading to
issuance of an order to show cause.” (In re Clark (1993) 5 Cal.4th
750, 780, superseded by statute on another point as stated in
Briggs v. Brown (2017) 3 Cal.5th 808, 841-842.) That did not
happen here.

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 Moreover, due process is implicated when the state
attempts to deprive a defendant of some liberty interest. (Hewitt
v. Helms (1983) 459 U.S. 460, 466, abrogated on another point by
Sandin v. Conner (1995) 515 U.S. 472, 483, fn. 5.) But Sauceda is
“categorically ineligible for relief under section 1170.95.”
(Tarkington, supra, 49 Cal.App.5th at p. 908, review granted.)
He thus had “no liberty interest in the appointment of counsel,
and . . . no expectation that counsel would be appointed for him.”
(Ibid.)
Reliance on prior appellate opinion
Finally, Sauceda contends the trial court erroneously
relied on hearsay statements in our opinion on direct appeal to
deny his resentencing petition. He is incorrect.
In People v. Woodell (1998) 17 Cal.4th 448, 456
(Woodell), our Supreme Court explained that a prior appellate
opinion is part of the defendant’s record of conviction. That
opinion is admissible for the nonhearsay purpose of determining
the basis for the conviction. (Id. at p. 459.) In Woodell, for
example, the court had to determine whether the defendant had
personally used a weapon and thus suffered a prior strike
conviction. (Ibid.) A prior opinion discussed evidence from “an
inmate that [the] defendant said he would ‘“kill somebody,”’ that
[he] was sharpening a scissor blade at certain times, and that
[he] stabbed the victim from behind.” (Id. at pp. 459-460.) If
those statements were “offered to prove that [the] defendant did
precisely those things, the evidence would be hearsay.” (Id. at p.
460.) But the question before the court “was not whether
defendant did precisely those things, but . . . whether [his]
conviction was based on personal weapon use or vicarious

10
liability.” (Ibid.) The opinion, including the evidence from the
inmate, “[could] be considered to decide [that] question.” (Ibid.)
The same is true here. The trial court did not accept
any statements in our prior opinion for the truth of the matter
asserted therein, but rather looked to the opinion for the
nonhearsay purpose of determining the basis for Sauceda’s
murder conviction. It noted such things as the charges and
allegations against Sauceda, the instructions given to the jury,
the jury’s findings and verdict, and our affirmance on appeal.
Taking notice of the existence of such evidence was entirely
permissible (Woodell, supra, 17 Cal.4th at pp. 459-460), and was
necessary for the court to determine whether Sauceda was
ineligible for resentencing as a matter of law (cf. People v.
Brimmer (2014) 230 Cal.App.4th 782, 800-801 [opinion used to
determine whether defendant was eligible for resentencing under
Three Strikes Reform Act]; In re Richardson (2011) 196
Cal.App.4th 647, 667 [opinion used to determine whether
defendant inflicted serious bodily injury]).
But even if the trial court did consider our prior
opinion for some hearsay purpose, we would find no error. In
post-trial proceedings, statements contained in prior appellate
opinions are admissible as reliable hearsay. (People v. Guilford
(2014) 228 Cal.App.4th 651, 660.) Had Sauceda believed that our
opinion misstated the facts, he could have raised that issue in a
petition for rehearing. (Ibid.) He did not do so. The opinion was
thus sufficiently reliable to be considered in the proceedings
below. (Id. at pp. 660-661.)

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 DISPOSITION
The trial court’s order denying Sauceda’s petition for
resentencing pursuant to section 1170.95, entered September 16,
2019, is affirmed.
NOT TO BE PUBLISHED.

TANGEMAN, J.
We concur:

GILBERT, P. J.

PERREN, J.

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 John F. McGregor, Judge

Superior Court County of Santa Barbara

______________________________

Jennifer A. Mannix, 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, Idan Ivri and Roberta L. Davis,
Deputy Attorneys General, for Plaintiff and Respondent.