Filed 1/19/21 P. v. Corrales CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SIX
THE PEOPLE, 2d Crim. No. B303207
(Super. Ct. No. VA134775)
Plaintiff and Respondent, (Los Angeles County)
v.
JOHNNY LUIS CORRALES,
Defendant and Appellant.
Johnny Luis Corrales 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 section 1170.95’s requirements,
and (2) violated his constitutional right to counsel. We disagree,
and affirm.
1 Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
In April 2014, brothers J.M. and P.M. were driving in
Pico Rivera when Corrales and two other gang members stepped
in front of their car.2 Corrales asked the brothers where they
were from. They replied that they did not “bang.” Corrales then
asked if the brothers lived on a certain street in his gang’s
territory. When they replied that they did, Corrales said, “Bust
them.” As J.M. drove away, one of the gang members took a
pistol from his waistband and shot at the fleeing vehicle.
The next day, P.M. left his house with another
brother, F.M., and a friend, J.L., in the same vehicle J.M. had
been driving the day before. After they drove by a convenience
store where gang members congregated, they heard a car
approach. P.M. yelled for F.M. and J.L. to get down. Three
gunshots rang out, one of which struck P.M.
P.M. lost consciousness as he drove away, and his car
eventually crashed. F.M. got out of the car and ran to a nearby
hospital. When he returned, police had arrived at the scene of
the crash. P.M. was dead.
The following month, Corrales admitted to a police
informant that he was a gang member and had been involved in
both of the April shootings. He claimed that the victims were
members of a local “tagging” crew that had ignored warnings
from his gang. He was not concerned about the gun that had
2 Because Corrales pled guilty, we take the underlying facts
of the case from the transcript of the preliminary hearing.
Corrales stipulated that the transcript plus police reports and
discovery could be used as the factual basis for his plea. (See
People v. West (1970) 3 Cal.3d 595, 600.)
2
been used to murder F.M. because his fellow gang members had
disposed of it.
Corrales also told the informant that even if police
recovered the gun used during the murder, he was not concerned
about his fingerprints or DNA being found on it because he had
not shot F.M. He also said that police had showed him a
photograph of the car used in the shooting of F.M. and that that
car belonged to his girlfriend. He worried that police would be
able to identify him as the driver if they enhanced the photo.
Corrales later reiterated to the informant that he was
concerned that police might be able to identify him as the driver
of the car used in F.M.’s murder. He also told the informant
where the murder had occurred. He identified the type of gun
used to kill F.M., and said that F.M. had been shot in the torso
from close range before he drove away and crashed his car.
One of Corrales’s fellow gang members also spoke to
a police informant. He told the informant that he was not
concerned that police had found the car used in F.M.’s murder
because the car belonged to Corrales’s girlfriend, thus any DNA
or fingerprints found inside was readily explainable. He was
similarly unconcerned about police finding the gun used to shoot
F.M. because he had wiped it down after the murder. He also
claimed that police could not identify him as the shooter since he
had only stuck his arm out the window of the car.
Corrales pled guilty to the first degree murder of
P.M. (§§ 187, subd. (a), 189, subd. (a)) and the attempted murder
of F.M. (§§ 664/187, subd. (a)) in 2018. He also admitted that he
committed his crimes for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)(C)). The trial court sentenced him to 25
years to life in state prison on the murder plus five years on the
3
attempted murder. It stayed the 10-year sentence enhancement
on the gang allegation admission.
In September 2019, Corrales petitioned for
resentencing pursuant to section 1170.95. In his petition,
Corrales declared that: (1) the complaint filed against him
allowed the prosecution to proceed on a felony murder theory or
natural and probable consequences theory, (2) he pled guilty to
first degree 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 act with the intent to
kill, and was not a major participant in the underlying felony
who acted with reckless indifference to human life. Corrales also
requested the appointment of counsel to assist him during the
resentencing process.
The trial court summarily denied Corrales’s petition.
According to the preliminary hearing transcript, one of Corrales’s
fellow gang members shot and killed P.M. from the car Corrales
was driving. The evidence was thus “clear” that Corrales was
convicted as an aider and abettor. He could therefore still be
convicted of murder under the changes to the law that had
occurred since his conviction, and was ineligible for resentencing
as a matter of law.
DISCUSSION
Summary denial
Corrales contends the trial court erred when it denied
his section 1170.95 resentencing petition without appointing
counsel. We disagree.
In 2018, the Legislature enacted Senate Bill No. 1437
(S.B. 1437) to “amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure
4
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 or murder under a
natural and probable consequences theory 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
felony murder theory or a natural and probable consequences
theory, the defendant was convicted of 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). First, the
court determines “whether the defendant has made a ‘prima facie
showing [that they] “fall within the provisions” of the statute.’
[Citation.]” (Id. at pp. 596-597, alterations omitted.) In making
that determination, the court “may examine the record of
conviction” (id. at p. 597), including the transcript of the
preliminary hearing if the defendant stipulated to it as the
factual basis for their guilty plea (People v. Nguyen (2020) 53
Cal.App.5th 1154, 1166-1168 (Nguyen)). If that examination
5
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.)
But 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. (Ibid.)
3 Nearly all decisions published to date are in accord. (See
People v. Palacios (2020) 58 Cal.App.5th 845, 857-859; 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;
Nguyen, supra, 53 Cal.App.5th at p. 1168; People v.
Galvan (2020) 52 Cal.App.5th 1134, 1144, review granted Oct. 14,
2020, S264284; People v. Gomez (2020) 52 Cal.App.5th 1, 15-16,
review granted Oct. 14, 2020, S264033; 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, 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.)
6
The record of conviction here reveals that Corrales
was ineligible for section 1170.95 relief as a matter of law
because he was convicted of first degree murder as an aider and
abettor. In 2014, our Supreme Court held that a defendant
cannot be convicted of first degree murder on a natural and
probable consequences theory. (See People v. Chiu (2014) 59
Cal.4th 155, 166.) Corrales pled guilty to first degree murder
four years later. His conviction thus could not have been based
on the natural and probable consequences doctrine.
As to first degree felony murder, the preliminary
hearing transcript shows that Corrales admitted to a police
informant that he drove the car from which his fellow gang
member shot and killed P.M. But shooting at an occupied vehicle
cannot be the basis for felony murder. (People v. Chun (2009) 45
Cal.4th 1172, 1200.) And Corrales identifies no other crime that
could have provided the basis for a felony murder conviction. Nor
does the preliminary hearing transcript reveal any such crime.
Corrales was thus convicted of first degree murder as an aider
and abettor, and is accordingly ineligible for resentencing as a
matter of law. (Nguyen, supra, 53 Cal.App.5th at p. 1166-1168.)
Corrales counters that, under the principles set forth
in People v. Gallardo (2017) 4 Cal.5th 120, the trial court was not
permitted to rely on the preliminary hearing transcript to find
him ineligible for section 1170.95 relief. Gallardo is inapposite.
As our colleagues in Division 7 have explained, “[t]he Supreme
Court in Gallardo held [that] a trial court may not rely on the
preliminary hearing transcript to determine the nature of [a]
defendant’s prior conviction for purposes of sentencing where the
record of conviction did not show whether the . . . conviction
under former section 245, subdivision (a)(1), was of assault with a
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deadly weapon or assault with force likely to produce great bodily
injury.” (People v. Perez (2020) 54 Cal.App.5th 896, 907, review
granted Dec. 9, 2020, S265254.) “The [Gallardo] defendant had
pleaded guilty to the prior assault, but she did not admit whether
she had used a deadly weapon.” (Ibid.) The Supreme Court thus
concluded that “the trial court had engaged in improper judicial
factfinding in violation of the Sixth Amendment . . . ‘[b]ecause the
relevant facts were neither found by a jury nor admitted by
defendant when entering her guilty plea.’” (Id. at pp. 907-908.)
“In contrast to the sentencing at issue in Gallardo,
‘the retroactive relief petitioners are afforded by [S.B.] 1437 is not
subject to Sixth Amendment analysis.’” (Perez, supra, 54
Cal.App.5th at p. 908, alterations omitted.) “Rather, the
Legislature’s changes constituted an act of lenity that does not
implicate . . . petitioners’ Sixth Amendment rights.’ [Citations.]”
(Ibid., alterations omitted.) Accordingly, “Gallardo did not
prohibit the [trial] court from considering the preliminary
hearing transcript as part of [Corrales’s] record of conviction in
evaluating whether [he] had made a prima facie showing he was
entitled to relief under section 1170.95.” (Ibid.)
We also reject Corrales’s claim that the trial court’s
reliance on the preliminary hearing transcript to determine
whether he was eligible for resentencing violated the rule against
hearsay. While we agree that the transcript contained hearsay
(People v. Reed (1996) 13 Cal.4th 217, 224), and that Corrales’s
stipulation to it as part of the factual basis for his plea did not
constitute an adoptive admission that waived any hearsay issue
(see People v. Thoma (2007) 150 Cal.App.4th 1096, 1104), reliable
hearsay is admissible in post-trial proceedings (People v.
8
Sledge (2017) 7 Cal.App.5th 1089, 1095). Preliminary hearing
transcripts are reliable hearsay. (Reed, at p. 223.)
Right to counsel
Alternatively, Corrales contends the trial court’s
summary denial of his resentencing petition violated his right to
counsel and due process. We again disagree.
A criminal defendant has 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, 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.) That 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 stage of the 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
9
the presence of counsel would not contribute to that purely legal
exercise, a defendant’s right to counsel is not implicated. (Cf.
People v. Howard (2020) 50 Cal.App.5th 727, 740 [section 1170.95
does not implicate right to jury trial].)
We also reject Corrales’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.
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 Corrales 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.)
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DISPOSITION
The trial court’s order denying Corrales’s petition for
resentencing pursuant to section 1170.95, entered November 5,
2019, is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Raul A. Sahagun, Judge
Superior Court County of Los Angeles
______________________________
Jonathan E. Demson, 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, Kristin J. Inberg and J. Michael
Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.