Filed 1/27/21 P. v. Aranda CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
THE PEOPLE, B301114
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A033571)
v.
GUADALUPE ACOSTA ARANDA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura L. Laesecke, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Susan
Sullivan Pithey, Assistant Attorneys General, Idan Ivri and Yun
K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Guadalupe Acosta Aranda
(defendant) appeals from the summary denial of his petition for
resentencing pursuant to Penal Code section 1170.95.1
Defendant contends that the trial court erred in finding him
ineligible for relief under the statute and in failing to appoint
counsel as requested in the petition. Finding no merit to
defendant’s claims, we affirm the trial court’s order.
BACKGROUND
The 1987 conviction
In 1986, defendant was charged with the murder of Victor
Armendariz (Armendariz).2 The information alleged that in the
commission of the murder, defendant personally used a firearm.
On August 20, 1987, defendant pled guilty to second degree
murder, admitted the firearm allegation, and was sentenced to a
term of 15 years to life in prison. Defense counsel stipulated to
the preliminary hearing transcripts and police reports as a
factual basis for the plea.
The evidence adduced at preliminary hearing showed that
the body of Armendariz was found in April 1986 near a junkyard.
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 We granted respondent’s request for judicial notice of the
following documents from the record of conviction in Los Angeles
County Superior Court case number A033571: the information,
the preliminary hearing transcript, the plea transcript, and the
judgment. (See Evid. Code, § 459; Cal. Rules of Court, rule
8.252(a).) We summarize procedural and evidentiary facts from
those documents.
2
Investigators spoke to residents in the area of the junkyard,
including defendant. After defendant was informed of his
Miranda rights,3 he admitted that he had shot and killed
Armendariz. According to defendant, Armendariz had come to
defendant’s home, demanded drugs and money, and when
defendant told him he had none, Armendariz demanded that
defendant open his garage so that Armendariz could take tools to
sell in order to buy drugs. Defendant told detectives that he had
hidden a gun in the garage in order to kill Armendariz. The two
men entered the garage, and after Armendariz selected several
tools, defendant shot him in the head. Defendant then dumped
the body near the junkyard and threw away the gun.
The section 1170.95 petition
In June 2019, defendant filed a petition for resentencing
under section 1170.95. The petition alleged:
“1. A complaint, information, or indictment was filed
against me that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and
probable consequences doctrine.
“2. I accepted a plea offer in lieu of a trial at which I could
have been convicted for first or second degree murder.
“3. I could no longer be convicted of first or second degree
murder because of changes to Penal Code Section 188 or
189 made effective January 1, 2019.”
“5. I request that this court appoint counsel for me during
this resentencing process.”
3 See Miranda v. Arizona (1966) 384 U.S. 436, 444-445.
3
The trial court summarily denied the petition on June 24,
2019, on the ground that section 1170.95 did not apply to
defendant because he was the actual killer.4
Defendant filed a timely notice of appeal from the order
denying his petition.
DISCUSSION
Defendant contends that the trial court prejudicially erred
and violated his federal constitutional rights to due process and
assistance of counsel by summarily denying his petition. He
argues that because his petition contained all the allegations
required by section 1170.95, subdivision (b)(1), he stated a prima
facie claim for resentencing under the statute, and the trial court
was thus required under subdivision (c) to appoint counsel and
give the parties the opportunity to file additional briefing.
A petitioner under section 1170.95 is entitled to the
appointment of counsel, the opportunity for further briefing, and
a hearing only if his petition makes a prima facie showing that he
is entitled to relief. (See § 1170.95, subds. (c) & (d).) A “‘prima
facie showing is one that is sufficient to support the position of
the party in question.’ [Citation.]” (People v. Drayton (2020) 47
Cal.App.5th 965, 977 (Drayton), quoting Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 851.) As relevant here, a
person is entitled to relief under section 1170.95 if, (1) “[a]
4 The trial court also ruled that section 1170.95 was
unconstitutional. Since the trial court’s order, it has been
repeatedly held that Senate Bill 1437 did not violate the
California Constitution. (See People v. Superior Court of Butte
County (2020) 51 Cal.App.5th 896, 902, and cases cited therein.)
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complaint, information, or indictment was filed against [him]
that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine,” (2) he “was convicted of first degree or second degree
murder [after he] accepted a plea offer in lieu of a trial,” and (3)
he “could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January
1, 2019.” (§ 1170.95, subd. (a).) A person may be convicted of
murder, even after the 2019 changes to sections 188 and 189, if
he “was the actual killer.” (§ 189, subd. (e)(1).)
Where a petition alleges each element necessary to make
out a prima facie case for relief under section 1170.95, a trial
court is not required to accept those allegations at face value, but
may also examine the record of conviction. (People v. Lewis
(2020) 43 Cal.App.5th 1128, 1137, review granted Mar. 18, 2020,
S260598; People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330,
review granted Mar. 18, 2020, S260493; People v. Tarkington
(2020) 49 Cal.App.5th 892, 899-900, 908-909, review granted
Aug. 12, 2020, S263219 (Tarkington); Drayton, supra, 47
Cal.App.5th at p. 968; People v. Edwards (2020) 48 Cal.App.5th
666, 673-674, review granted July 8, 2020, S262481; People v.
Torres (2020) 46 Cal.App.5th 1168, 1178, review granted June 24,
2020, S262011; but see People v. Cooper (2020) 54 Cal.App.5th
106, 119-121, review granted Nov. 10, 2020, S264684.) The
record of conviction includes such documents as the “complaint,
information or indictment filed against the petitioner; the verdict
form or factual basis documentation for a negotiated plea . . . .”
(Verdugo, at pp. 329-330.) However, the contents of the record of
conviction will defeat a defendant’s prima facie showing only
when the record “show[s] as a matter of law that the petitioner is
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not eligible for relief.” (Lewis, at p. 1138, italics added; Verdugo,
at p. 333; Torres, at p. 1177; Drayton, at p. 968; see also People v.
Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18,
2020, S260410 (Cornelius) [record must show defendant is
“indisputably ineligible for relief”].)
Citing People v. Duvall (1995) 9 Cal.4th 464, 474-475, and
California Rules of Court, rule 4.551(c)(1), defendant suggests
that the trial court should have followed analogous habeas corpus
procedure by assuming the truth of the petition’s factual
allegations in determining whether a prima facie showing of
entitlement to relief was made. However, even in a habeas
proceeding a court is not required to assume the allegations are
true if they are directly contradicted by the court’s own records.
(In re Serrano (1995) 10 Cal.4th 447, 456.) Thus, as in a habeas
proceeding, “when assessing the prima facie showing, the trial
court should assume all facts stated in the section 1170.95
petition are true. [Citation.] The 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.” (Drayton, supra, 47
Cal.App.5th at p. 980.)
Here, the trial court correctly concluded that defendant did
not make a prima facie case for relief because the record of
conviction establishes, as a matter of law, that he is not eligible
for relief. Defendant admitted in the factual basis for his plea
that he was the actual killer, intended to kill, and personally
used a firearm. Under the amended sections 188 and 189, the
actual killer who acted with malice aforethought can still be
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convicted of murder. (See §§ 188, subd. (b), 189, subd. (e)(1).)
Thus, the changes to sections 188 and 189 are inapplicable, and
defendant is ineligible for resentencing under section 1170.95 as
a matter of law. (See Cornelius, supra, 44 Cal.App.5th at p. 58;
Tarkington, supra, 49 Cal.App.5th at pp. 899, 910.)
We agree with respondent that if the trial court had
followed an erroneous procedure, any error would be harmless.
Defendant asserts that the trial court’s denial of counsel is
prejudicial under any standard because “counsel could have
argued that [defendant] did not act with malice aforethought”,
and “because it is impossible to know how the court would have
ruled if it had the benefit of counsel’s input.” On the contrary,
section 1170.95 extends vacatur and resentencing to petitioners
who “could not be convicted of murder because of the changes to
sections 188 and 189, not because a prior fact finder got the facts
wrong. The purpose of section 1170.95 is to give defendants the
benefit of amended sections 188 and 189 with respect to issues
not previously determined, not to provide a do-over on factual
disputes that have already been resolved.” (People v. Allison
(2020) 55 Cal.App. 5th 449, 461.)
Defendant also contends that the trial court’s failure to
appoint counsel prior to denying the petition was a violation of
his rights to counsel and due process under the federal and state
constitutions, amounting to structural error. If not structural,
defendant argues, we should apply the test applied to federal
constitutional error as stated in Chapman v. California (1967)
386 U.S. 18, 24, to determine whether the error was harmless
beyond a reasonable doubt. However, prisoners have no federal
“constitutional right to counsel when mounting collateral attacks
upon their convictions [citation].” (Pennsylvania v. Finley (1987)
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481 U.S. 551, 555.) Under the federal constitution, the right to
appointed counsel extends only to trial and the first appeal; and
when states enact statutes to provide other postconviction relief,
they have substantial discretion to develop and implement such
programs. (Id. at pp. 557-559.) In California, examples can be
found in the rules governing petitions for writ of habeas corpus
and coram nobis which require the petition to state a prima facie
showing of entitlement to relief before the court must appoint
counsel. (See People v. Fryhaat (2019) 35 Cal.App.5th 969, 982.)
As defendant did not make a prima facie showing of eligibility
under section 1170.95, the trial court was not required to appoint
counsel, and thus there was no structural or constitutional error.
DISPOSITION
The order of the superior court denying defendant’s section
1170.95 petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
HOFFSTADT
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