Filed 2/3/21 P. v. Zapata CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B304278
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA024428)
v.
MIGUEL ANGEL ZAPATA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Leslie E. Brown, Judge. Reversed and
remanded with directions.
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.
In 1997, defendant Miguel Angel Zapata entered a plea of
no contest to one count of second degree murder. In 2019, he
petitioned for resentencing pursuant to Penal Code1 section
1170.95. He appeals the order of the trial court summarily
denying his petition.
The record of conviction does not contain evidence
demonstrating the factual basis for Zapata’s no contest plea. As a
result, the People assert the trial court exceeded the scope of
review under section 1170.95 by making factual findings about
Zapata’s conviction without conducting an evidentiary hearing.
We agree and reverse with instructions for the trial court to issue
an order to show cause and conduct a hearing pursuant to
section 1170.95, subdivision (d).
BACKGROUND
A. Evidence Presented at the Preliminary Hearing2
On the evening of January 21, 1996, Jesse Reyes and
several friends attended a party near Venice High School. While
at the party, a man wearing a brown bandana “mad dogged”
Reyes. Reyes left the party in a Cadillac, followed by a second
group of friends in an Infiniti driven by his friend William
Cabrera.
While driving, Reyes heard gunshots coming from the
direction of a silver gray Thunderbird. The shots were fired in
1 Unlessotherwise stated, all statutory references are to
the Penal Code.
2 The facts set forth herein are distilled from the transcript
of the preliminary hearing, and are presented solely to explain
our decision. They do not represent factual findings for purposes
of further proceedings.
2
the direction of Cabrera’s Infiniti. Reyes believed the shooter was
the man who “mad dogged” him at the party. Cabrera described
hearing five shots fired from a silver or gray Thunderbird or
Toyota Celica.
Law enforcement officers located Zapata’s silver gray
Thunderbird at his residence. During a subsequent police
interview, Anthony Sanchez admitted attending the party in
Venice, leaving in Zapata’s vehicle, and shooting at another
vehicle in self defense. Zapata joined the interview and admitted
that he picked Sanchez up from the party. Sanchez told him that
they “were gonna go see who these guys were.” Zapata agreed to
follow the men Sanchez had encountered at the party to confirm
where they were from. Someone in the vehicle they had been
following fired at them, and Sanchez returned fire in self defense.
One of the passengers in Cabrera’s Infiniti, Cesar Martin,
died as a result of a bullet wound sustained in the shooting. A
second passenger, Eric Huizar, suffered serious injuries but
recovered.
B. Zapata’s Conviction for Second Degree Murder
Zapata and Sanchez were held to answer on multiple
charges. Zapata was arraigned on one count of murder and three
counts of attempted murder. The record does not contain the
charging document, and the superior court clerk has certified
that the felony information cannot be located.
Sanchez was tried by a jury for murder and convicted in
early 1997. We affirmed the conviction in an unpublished
opinion. (People v. Sanchez (Nov. 24, 1998, B111548).)
Zapata, on the other hand, pleaded no contest to second
degree murder (§ 187, subd. (a)). The trial court sentenced him to
15 years to life in state prison.
3
C. The Petition for Resentencing
On February 15, 2019, Zapata filed a petition for
resentencing pursuant to section 1170.95. The petition did not
attach any documents from the underlying record of conviction.
In the response to the petition, the prosecution described the
facts as derived from the pre-plea probation report, which it
attached to its brief as an exhibit. The prosecution also
referenced the transcript of the preliminary hearing held jointly
for Zapata and Sanchez, which included as an exhibit a transcript
of the videotaped police interview of Sanchez and Zapata.
The trial court appointed counsel for Zapata. During
discussions about the procedural posture of the case, the trial
court indicated that it had reviewed the pre-plea probation
report, which set forth the facts of the case. The court and
counsel discussed the utility of reviewing portions of the
transcript from Sanchez’s trial, in which witnesses described the
shooting. The prosecutor agreed to obtain the trial transcript and
provide it in a CD format to the court and defense counsel.
On January 10, 2020, the trial court conducted a hearing
on the petition for resentencing. During the hearing, counsel
referenced the contents of both the preliminary hearing
transcript and the Sanchez trial transcript.
The prosecutor acknowledged that it was not possible to
discern if the charge against Zapata proceeded on a theory of
felony murder or the natural and probable consequences doctrine.
Nonetheless, he argued the facts showed that Zapata was
convicted under an aiding and abetting theory, based on his role
as the driver who maneuvered the vehicle in close proximity to
the victims to allow Sanchez to shoot at them. Defense counsel
responded that the preliminary hearing transcript made it
4
difficult to determine whether the prosecutor had been pursuing
a direct aider and abettor theory or a natural and probable
consequences theory. Based on the evidence of gang rivalry that
occurred at the party, he argued the prosecutor could have
pursued a theory of natural and probable consequences.
Following argument by counsel, the trial court stated only
that the prosecutor had “pointed to evidence that supports the
direct aider and abettor theory here.” The trial court denied the
petition without issuing an order to show cause or holding an
evidentiary hearing, on the ground that Zapata had failed to
establish a prima facie showing of entitlement to relief. Zapata
timely appealed.
D. The Record on Appeal
The record on appeal includes the following documents
from the proceedings on the underlying second degree murder
conviction: (1) a minute order documenting Zapata’s arraignment
on the felony information; (2) the preliminary hearing transcript,
including the transcript of the videotaped interview of Sanchez
and Zapata that was played during the hearing; and (3) the pre-
plea probation report. We ordered the record augmented to
include the following documents: (4) the minute order reflecting
entry of Zapata’s no contest plea on June 19, 1997; (5) the minute
order from the sentencing hearing conducted on July 18, 1997;
(6) the certified reporter’s transcript of the sentencing hearing;
and (7) the abstract of judgment. Upon review of additional
records in the superior court’s archives, court staff members were
unable to locate a transcript of the plea colloquy or record of any
plea agreement.
5
DISCUSSION
A. Section 1170.95
Zapata alleges he was convicted under either the felony
murder rule or the natural and probable consequences doctrine.
He argues the trial court erred by denying his petition for
resentencing without issuing an order to show cause or
conducting an evidentiary hearing. The People concur,
acknowledging that while the record contains evidence that
Zapata may have aided and abetted Sanchez in the killing, the
record does not show that Zapata was ineligible for relief under
section 1170.95 as a matter of law. We agree.
In 2018, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) “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 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); People v. Lewis (2020) 43 Cal.App.5th
1128, 1135 (Lewis), review granted Mar. 18, 2020, S260598.)
Senate Bill No. 1437 accomplished this by amending section 188,
which defines malice, and section 189, which defines the degrees
of murder, and as now amended, addresses felony murder
liability under subdivision (e). (People v. Verdugo (2020) 44
Cal.App.5th 320, 326 (Verdugo), review granted Mar. 18, 2020,
S260493.) Senate Bill No. 1437 also enacted section 1170.95,
which provides a vehicle for petitioners convicted of murder
pursuant to a now invalidated theory to petition to have the
conviction vacated and to be resentenced. (Lewis, supra, at
p. 1135; see § 1170.95, subd. (a).)
6
In reviewing a petition under section 1170.95, the trial
court engages in multiple levels of review. (People v. Drayton
(2020) 47 Cal.App.5th 965, 975 (Drayton); Verdugo, supra, 44
Cal.App.5th at pp. 327-328; Lewis, supra, 43 Cal.App.5th at
pp. 1136-1138.) First, the trial court conducts an initial review to
determine the facial sufficiency of the petition. (§ 1170.95,
subd. (b); Drayton, supra, at p. 974; Verdugo, supra, at p. 328.) If
the petition includes the required information, the trial court
then reviews the petition to determine whether the petitioner has
made a prima facie showing of eligibility for relief. (§ 1170.95,
subd. (c); Drayton, supra, at p. 975-976; Verdugo, supra, at
p. 327-328, 330; Lewis, supra, at p. 1138.) If so, the trial court
must then appoint counsel and order briefing to assist the court
in determining whether the petitioner has made a prima facie
showing that he or she is entitled to relief. (§ 1170.95, subd. (c);
Verdugo, supra, at p. 332; Lewis, supra, at p. 1140.)
In determining whether a petitioner has demonstrated the
prima facie showings, the trial court may review the record of
conviction. (Lewis, supra, 43 Cal.App.5th at p. 1138.) The record
of conviction may include the complaint, the information or
indictment, the verdict forms or the factual basis for a negotiated
plea, the abstract of judgment, and any appellate decision on
direct appeal. (Verdugo, supra, 44 Cal.App.5th at pp. 329-330,
331-333; Lewis, supra, at p. 1138.)
At these initial stages, the trial court’s role is to determine
whether the petitioner is ineligible for relief as a matter of law,
drawing all factual inferences in favor of the petitioner.
(Drayton, supra, 47 Cal.App.5th at p. 980; Verdugo, supra, 44
Cal.App.5th at p. 329.) It must not engage in factfinding or
assess the credibility of the witnesses. (Drayton, supra, at
7
p. 980.) The court “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 (such as determining whether the petitioner showed
reckless indifference to human life in the commission of the
crime).” (Ibid.)
If the petitioner satisfies both prima facie showings, then
the trial court proceeds to the next level of review by issuing an
order to show cause and conducting a hearing pursuant to the
procedures set forth in section 1170.95, subdivision (d).
(§ 1170.95, subd. (c); Drayton, supra, 47 Cal.App.5th at pp. 980-
981; Verdugo, supra, 44 Cal.App.5th at pp. 328-329.)
B. Consideration of the Preliminary Hearing Transcript
Not all petitions for resentencing need to proceed to an
evidentiary hearing. Relief under section 1170.95 “is only
available to a person convicted of felony murder or murder under
a natural and probable consequences theory.” (People v. Nguyen
(2020) 53 Cal.App.5th 1154, 1166 (Nguyen), review denied
Nov. 10, 2020, S264735.) When “a review of the court file shows
the petitioner was convicted of murder without instruction or
argument based on the felony murder rule or [the natural and
probable consequences doctrine],” it is appropriate to summarily
deny a petition under 1170.95 based on a failure to establish a
prima facie showing of eligibility for resentencing. (Lewis, supra,
43 Cal.App.5th at p. 1138.)
For purposes of review at the prima facie stage under
section 1170.95, the “record of conviction” includes the transcript
of the preliminary hearing. (People v. Falcon (2020) 57
Cal.App.5th 272, 277, review granted Jan. 27, 2021, S266041;
People v. Perez (2020) 54 Cal.App.5th 896, 904-905, review
8
granted Dec. 9, 2020, S265254; Nguyen, supra, 53 Cal.App.5th at
p. 1166; see also People v Reed (1996) 13 Cal.4th 217, 223 [a
preliminary hearing transcript is part of the record of conviction
for purposes of proving a prior serious felony conviction under
§ 667, subd. (a)].)
A preliminary hearing transcript may demonstrate a
petitioner was convicted as a direct aider and abettor, such as
when the petitioner stipulated to a factual basis for a guilty or no
contest plea based on the preliminary hearing transcript, and
that transcript shows the only theory advanced by the
prosecution was an aiding and abetting theory. (See Nguyen,
supra, 53 Cal.App.5th at p. 1166.) The facts established at a
preliminary hearing also may support a denial of a section
1170.95 petition when there is no mention in the record of any
underlying felony that could have been used as the basis for
felony murder liability, or any target offense or conduct that
could have formed the basis of liability under the natural and
probable consequences doctrine. (Nguyen, supra, at p. 1167; see
People v. Falcon, supra, 57 Cal.App.5th at pp. 278-279 [upholding
denial of § 1170.95 petition at prima facie stage in reliance on
facts presented at the preliminary hearing, which established the
petitioner was prosecuted solely on the theory he was a direct
aider and abettor]; People v. Perez, supra, 54 Cal.App.5th at
pp. 906-907 [same where the facts presented at the preliminary
hearing established the petitioner was prosecuted as the actual
killer].)
C. The Trial Court Erred in Summarily Denying
Zapata’s Section 1170.95 Petition
The trial court denied Zapata’s petition for resentencing
based on evidence in the record supporting a direct aider and
9
abettor theory. To prove liability for murder as a direct aider and
abettor, “the prosecution must show the defendant acted with
knowledge of the perpetrator’s criminal purpose and with the
intent of committing, encouraging, or facilitating commission of
the offense.” (Nguyen, supra, 53 Cal.App.5th at p. 1164.)
In order to find Zapata aided and abetted Sanchez, the trial
court relied on the facts presented by counsel as contained in the
pre-plea probation report, the preliminary hearing transcript,
and portions of the transcript from Sanchez’s jury trial. There is
nothing in the record to indicate the trial court reviewed the
felony information filed against Zapata, any record of his plea
agreement, or a transcript of the plea colloquy. No such
documents have been provided as part of the record on appeal,
nor have they been located pursuant to our request for further
review of the superior court file.
The trial court’s approach does not comport with the
statutory scheme of section 1170.95. Without a charging
document, plea transcript, or record of the plea agreement, it is
not possible to confirm whether, as a matter of law, Zapata’s
conviction is still valid under the law as amended by Senate Bill
No. 1437. (See Drayton, supra, 47 Cal.App.5th at pp. 981-982
[where the prosecutor agreed the petitioner’s guilty plea was
premised on a felony murder theory, the trial court erred at the
prima facie stage by relying on facts established at the
preliminary hearing to find the petitioner acted with reckless
indifference to human life]; cf. Nguyen, supra, 53 Cal.App.5th at
pp. 1166-1167 [upholding denial of § 1170.95 petition at prima
facie stage in reliance on facts reflected in the preliminary
hearing transcript, where the petitioner stipulated to the
preliminary hearing as the factual basis for his guilty plea to
10
second degree murder, the prosecutor relied only on an aider and
abettor theory, and no underlying felony or target offense was
charged].)
The trial court also erred in relying on the pre-plea
probation report and portions of the transcript of Sanchez’s trial
to deny relief at this stage of review. (See People v. Falcon,
supra, 57 Cal.App.5th at p. 278 [agreeing that the trial court
erred in relying on records of the codefendant’s trial in
conducting review of a petition under § 1170.95 at the prima facie
stage].)
The limited record of conviction does not establish as a
matter of law that Zapata is ineligible for relief under section
1170.95. Therefore, the matter must be remanded for an order to
show cause pursuant to section 1170.95, subdivision (c), and a
hearing pursuant to section 1170.95, subdivision (d), during
which the parties may “rely on the record of conviction or offer
new or additional evidence to meet their respective burdens.”
(§ 1170.95, subd. (d)(3).) At the hearing, the trial court is not
restricted to reviewing the documents included in the current
record. We express no opinion on Zapata’s ultimate entitlement
to relief following a hearing.
11
DISPOSITION
The order denying the petition for resentencing under
section 1170.95 is reversed and the matter is remanded to the
superior court. On remand, the superior court shall issue an
order to show cause and conduct a hearing in accordance with
section 1170.95, subdivisions (c) and (d).
NOT TO BE PUBLISHED
FEDERMAN, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
12