People v. Aguilar CA2/2

Filed 1/28/21 P. v. Aguilar CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B305389

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A464812)
v.

HECTOR RICHARD
AGUILAR,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Yvonne T. Sanchez, Judge. Reversed and
remanded.

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, Charles S. Lee and Kathy S. Pomerantz,
Deputy Attorneys General, for Plaintiff and Respondent.
******
Hector Richard Aguilar (defendant) appeals the trial court’s
summary denial of his motion for relief under Penal Code section
1170.95.1 This was error because the record of conviction did not
foreclose relief as a matter of law. Accordingly, we reverse and
remand.
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crime
On January 5, 1985, defendant and a fellow gang member
got into an argument with a rival gang member named Alex
Alvara (Alvara) in a parking lot. After the verbal tiff, Alvara got
into a car driven by Joe Hernandez (Hernandez) and carrying
three other passengers; the car departed the parking lot. Angry
about the tiff, defendant drove his car alongside Hernandez’s car.
Defendant’s fellow gang member then fired five or six shots from
a 35-inch rifle. One bullet killed Hernandez; another severely
wounded one of the other passengers.
B. Charging, conviction and appeal
The People charged defendant with the first degree murder
of Hernandez (§ 187, subd. (a)), and the attempted murder of the
other four passengers (§§ 187, subd. (a), 664). At trial, defendant
testified that his initial “plan” with his fellow gang member was

1 All further statutory references are to the Penal Code
unless otherwise indicated.

2 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction on appeal. (People v.
Aguilar (June 29, 1987, B017711) [nonpub. opn.].)

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to merely shoot out the tires, not to commit a murder. The trial
court instructed the jury that defendant could be guilty of
Hernandez’s murder on one of two theories—namely, for aiding
and abetting that murder, or for aiding and abetting an assault
that resulted in that murder. In a general verdict, a jury
convicted defendant (and his fellow gang member) of Hernandez’s
murder and the attempted murder of the passengers, and further
found true the allegation that the fellow gang member was armed
with a firearm. (§ 12022, subd. (a).) As modified on appeal, the
trial court sentenced defendant to 25 years to life on the murder
count and a consecutive 12 years and four months on the
attempted murder counts. Defendant appealed his conviction,
his counsel filed a no-merit brief under People v. Wende (1979) 25
Cal.3d 436, and we affirmed his conviction in an unpublished
opinion.
II. Procedural Background
On February 22, 2019, defendant filed a petition seeking
resentencing under section 1170.95. In the form petition,
defendant checked the boxes for the allegations that he had been
charged with murder, that he was convicted “pursuant to the
felony murder rule or the natural and probable consequences
doctrine,” and that his murder conviction would be invalid under
the “changes made to Penal Code §§ 188 and 189, effective
January 1, 2019.” After the People filed two supplemental
responses arguing that defendant was not eligible for relief as a
matter of law and that section 1170.95 was unconstitutional, the
trial court summarily denied the petition because “[s]ubstantial
evidence from the record of conviction supports the petitioner’s
conviction as a direct aider and abettor.” Defendant filed this
timely appeal.

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 DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1170.95 petition because the court’s reason
for denying relief is incorrect. Because the trial court’s reason for
summarily denying relief turns on its interpretation of section
1170.95 and the application of law to undisputed facts, our
review of that reason is de novo. (People v. Blackburn (2015) 61
Cal.4th 1113, 1123; Martinez v. Brownco Construction Co. (2013)
56 Cal.4th 1014, 1018.)
A person filing a petition under section 1170.95 is entitled
to the appointment of counsel, the opportunity for further
briefing and a hearing if, in his petition, he “makes a prima facie
showing that he . . . is entitled to relief” under that section.
(§ 1170.95, subds. (c) & (d); People v. Lewis (2020) 43 Cal.App.5th
1128, 1139-1140, review granted Mar. 18, 2020, S260598 (Lewis);
People v. Verdugo (2020) 44 Cal.App.5th 320, 330, review granted
Mar. 18, 2020, S260493 (Verdugo).) A person is entitled to relief
under section 1170.95 if, as relevant here, (1) “[a] 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 murder,” 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 made to sections 188 and 189, if he (1)
“was the actual killer,” (2) aided and abetted the actual killer
with the intent to kill, or (3) “was a major participant in the
underlying felony and acted with reckless indifference to human
life.” (§ 189, subd. (e).) A “‘prima facie showing is one that is

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sufficient to support the position of the party in question.’”
(Lewis, at p. 1137, quoting Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 851.)
On the facts of this case, defendant has made the requisite
prima facie showing for relief because his petition alleges that he
was charged with murder under a natural and probable
consequences theory, was convicted of first degree murder, and
“could not now be convicted of first or second degree murder.”
To be sure, a trial court evaluating whether a defendant
has made a prima facie showing in a section 1170.95 petition is
not required to accept the petition’s allegations at face value and
may also examine the record of conviction—which includes the
transcript from the preliminary hearing as well as any prior
appellate decisions. (Lewis, supra, 43 Cal.App.5th at p. 1138;
Verdugo, supra, 44 Cal.App.5th at pp. 329-330; People v.
Tarkington (2020) 49 Cal.App.5th 892, 899-900, 908-909, review
granted Aug. 12, 2020, S263219; People v. Drayton (2020) 47
Cal.App.5th 965, 968 (Drayton); People v. Edwards (2020) 48
Cal.App.5th 666, 673-674, review granted July 8, 2020, S262481
(Edwards); People v. Torres (2020) 46 Cal.App.5th 1168, 1178,
review granted June 24, 2020, S262011 (Torres); but see People v.
Cooper (2020) 54 Cal.App.5th 106, 121-123, review granted Nov.
10, 2020, S264684 [rejecting Lewis and its progeny]; see also
People v. Woodell (1998) 17 Cal.4th 448, 451 [“the record of
conviction” includes “the appellate court record, including the
appellate opinion”]; People v. Reed (1996) 13 Cal.4th 217, 223
[“record of conviction” includes “the preliminary hearing
transcript”].) But the contents of the record of conviction defeat a
defendant’s prima facie showing only when the record “show[s] as
a matter of law that the petitioner is not eligible for relief.”

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(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
[record must show defendant is “indisputably ineligible for
relief”].) A defendant is ineligible for relief as a matter of law in
cases where the record conclusively shows that the jury actually
relied—and the defendant’s murder conviction actually rests—
upon on a theory of liability that is unaffected by section 1170.95
(that is, on the theory that defendant was the actual killer or
directly aided and abetted the killing).
Here, the record of conviction does not establish, as a
matter of law, that defendant is not eligible for relief. The trial
court found that defendant was ineligible for relief because
“[s]ubstantial evidence from the record of conviction supports the
petitioner’s conviction as a direct aider and abettor.” However,
the fact that substantial evidence supports defendant’s conviction
on a valid theory does not mean that the record in this case
conclusively shows that the jury in his case actually relied upon
that valid theory or that the jury did not rely on the invalid
theory. (Drayton, supra, 47 Cal.App.5th at p. 968 [in assessing
whether a petitioner has established a prima facie case, trial
court “should accept the assertions in the petition as true unless
facts in the record conclusively refute them as a matter of law”],
italics added.) To the contrary, the record in this case reveals
that the jury was instructed on two theories—one valid under
section 1170.95 (that is, direct aiding and abetting) and one
invalid under section 1170.95 (that is, natural and probable
consequences liability with the underlying crimes being assault
and assault with a deadly weapon)—and the jury’s general
verdict finding defendant guilty does not conclusively establish

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which of these theories the jury actually relied upon in returning
that verdict. (Cf. Edwards, supra, 48 Cal.App.5th at p. 674
[defendant is ineligible for section 1170.95 relief as a matter of
law if the jury is never instructed on an invalid theory].)
The People resist this conclusion.
They argue that we should view the jury’s verdict as
resting solely on the valid direct aiding and abetting theory
because the prosecutor, in closing argument, never expressly
argued natural and probable consequences theory liability. We
reject this argument. Because the jury was instructed on the
theory of natural and probable consequences liability as well as
two crimes that could provide the target crimes for such liability,
because defendant testified that his initial “plan” with his fellow
gang member was to shoot out the tires (and hence commit an
assault) and then argued these facts in closing, and because the
prosecutor never disclaimed reliance on the natural and probable
consequences theory (see People v. Russo (2001) 25 Cal.4th 1124,
1132 [for purposes of whether a unanimity instruction is
required, a theory is considered abandoned only if the People
affirmatively disclaim it]), the natural and probable consequences
theory remained at play and could have provided the basis for the
jury’s verdict. Whether it was likely the basis is of no concern
where, as here, the question is whether the record forecloses
relief to the defendant as a matter of law. Here, it does not.
We are also unpersuaded by People v. Garcia (2020) 57
Cal.App.5th 100, 116 (Garcia), which holds that summary denial
is appropriate if “substantial evidence in the record supports a
murder conviction” under a valid theory, even if the record does
not conclusively establish as a matter of law that this was the
actual theory upon which the jury relied in returning the murder

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conviction. Garcia openly rejects Drayton, supra, 47 Cal.App.5th
965. Because Garcia’s rationale borrows from the standard that
a trial court is to apply at an evidentiary hearing under section
1170.95 rather than at the threshold eligibility stage (Garcia, at
pp. 115-116), and because Garcia empowers a trial court to weigh
evidence at the summary denial stage and thereby denies the
defendant his statutory right under section 1170.95 to present
“new or additional evidence” that might alter the universe of the
evidence weighed (§ 1170.95, subd. (d)(3)), we choose to follow
Drayton.
Because defendant has made a prima facie showing that he
is entitled to relief under section 1170.95 and because the record
of conviction does not otherwise compel a finding that defendant
is ineligible for relief as a matter of law, the trial court’s
summary denial of his petition was erroneous.

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 DISPOSITION
The order is reversed. On remand, the trial court is to
appoint counsel and conduct the hearing required by section
1170.95, subdivision (d)(3) at which it is the prosecution’s burden
to prove beyond a reasonable doubt that defendant is “ineligible
for resentencing” under section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.
HOFFSTADT

We concur:

_________________________, P. J.
LUI

_________________________, J.
ASHMANN-GERST

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