Filed 2/16/21 P. v. Gandara CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE
THE PEOPLE, B298394
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA005631)
v.
GUILLERMO HUMBERTO
GANDARA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Roosevelt F. Dorn, Judge. Affirmed.
Jonathan E. Demson, under appointment of 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 Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant’s petition for resentencing under Penal Code
section 1170.95 was summarily denied.1 As defendant was not
eligible for relief as a matter of law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Underlying Offense, Conviction, and Appeal2
Following a brief confrontation in which the victim was
held against a fence by a group of men, and codefendant Macario
Aguirre struck him in the face, the victim walked away and
picked up a rock. Aguirre told defendant to shoot him.
Defendant slowly and deliberately took out a gun, aimed it at the
victim, and shot. The victim ran away, and subsequently died
from a gunshot to his left thigh; the bullet had severed his
femoral artery.
Defendant and Aguirre were charged with a single count of
murder (§ 187). It was further alleged that defendant personally
used a firearm (§ 12022.5) and a principal was armed (§ 12022,
subd. (a)(1)).
The case proceeded to jury trial. Defendant offered a
defense that did not challenge his identity as the shooter;
instead, he argued only that he lacked the intent necessary for
murder – suggesting (via a third-party witness) that he had
intended only to scare the victim. In argument to the jury, his
1 All further undesignated statutory references are to the
Penal Code.
2 We take our discussion of the facts from the opinion
affirming defendant’s conviction, of which we have taken judicial
notice. (People v. Gandara (July 24, 1992, B054597) [nonpub.
opn.].) As relevant to our procedural discussion, we have also
taken judicial notice of excerpts from the prior appellate record.
2
counsel suggested that the shooting was in self-defense or defense
of another or, in the alternative, constituted only manslaughter.
The jury found both defendants guilty of second-degree
murder. The jury found true the allegations that defendant
personally used a firearm and that a principal was armed. As to
Aguirre, the jury found the principal armed allegation not true.
Defendant was sentenced to prison for 15 years to life for
the murder, plus 2 years for the personal use enhancement.
On appeal, a prior panel of this appellate division affirmed.
In responding to the defendants’ argument that their motion for
acquittal should have been granted, the panel found sufficient
evidence to support the verdicts. The court explained, “Appellant
Gandara, with the aid and encouragement of appellant Aguirre,
shot directly at the victim with a deadly weapon, killing the
victim.”
2. Defendant’s Section 1170.95 Petition
On January 7, 2019, defendant, representing himself, filed
a form petition for resentencing under section 1170.95. He
requested counsel.
On the form, a defendant is to check Box 5 if he has been
convicted of first-degree felony murder and Box 6 if convicted of
second-degree murder under felony-murder or the natural and
probable consequences doctrine. Defendant checked Box 6 and
not Box 5. However, defendant checked some, but not all, of the
boxes under Box 5. That is, defendant checked the box for “I was
not a major participant in the felony or I did not act with reckless
indifference to human life during the course of the crime or
felony.” He left unchecked, “I was not the actual killer.”
Although defendant was not required to check any of the boxes
under Box 5 – as he did not check Box 5 itself – the fact that he
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checked some but not others is consistent with his role as the
actual killer.
On March 8, 2019, the court took the matter under
submission. On March 20, 2019, the prosecution simultaneously
filed a request for an extension to file an informal response to the
petition, and an opposition to the petition arguing section 1170.95
is unconstitutional.3
On March 28, 2019, the trial court issued an order stating
that it had read the petition and, based on that review, defendant
“has not made a prima facie claim for relief, as the statute, and
the language of this petition, require.” The court referred to Box
5 of the petition, which suggests that the court was focused on
defendant’s failure to assert he was not the actual killer.
Defendant filed a timely notice of appeal.
DISCUSSION
On appeal, defendant argues only that the trial court erred
in denying his petition without appointing counsel.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437)
invalidated the natural and probable consequences doctrine as it
relates to murder, and narrowed liability for felony murder.
(People v. Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo),
review granted Mar. 18, 2020, S260493.) It also enacted section
1170.95, providing a means by which a defendant convicted of
murder under prior authority could seek resentencing under the
new version of the law.
3 The opposition contained a single sentence arguing that,
even if the statute were constitutional, it would not apply to
defendant because he was the actual shooter.
4
Once a section 1170.95 petition is filed, there follows a
multi-step process by which the court first determines whether
the petition is facially complete, and, if so, whether the petitioner
has made a prima facie showing that he falls within the
provisions of statutory eligibility. (People v. Torres (2020)
46 Cal.App.5th 1168, 1177 (Torres), review granted June 24,
2020, S262011.)
The materials which the court can review at this stage
include the prior appellate opinion. (People v. Lee (2020)
49 Cal.App.5th 254, 263, review granted July 15, 2020, S262459;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, fn. 7, review
granted Mar. 18, 2020, S260598.) If the court determines the
petitioner is ineligible for relief as a matter of law, the petition is
denied at this first stage; if not, the court proceeds to the next
step. (Torres, supra, 46 Cal.App.5th at pp. 1177-1178.)
At the first stage, the court’s inquiry is only whether the
defendant is ineligible for relief under section 1170.95 as a
matter of law. (Verdugo, supra, 44 Cal.App.5th at p. 329.) If, for
example, the court’s review of the record of conviction necessarily
establishes the defendant was convicted on a ground that
remains valid after SB 1437’s amendment of murder law, the
petition may be denied at this stage. (Id. at pp. 329-330.) But if
the court “cannot rule out the possibility that the jury relied on” a
theory invalidated by SB 1437, there is no prima facie
ineligibility. (People v. Offley (2020) 48 Cal.App.5th 588, 599.)
There is no statutory right to counsel at this first, prima
facie, stage of review. (Verdugo, supra, 44 Cal.App.5th at p. 323;
see also People v. York (2020) 54 Cal.App.5th 250, 253, review
granted Nov. 18, 2020, S264954; but see People v. Cooper (2020)
54 Cal.App.5th 106, review granted Nov. 10, 2020, S264684.)
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Neither the federal nor state constitutions require appointment
of counsel in a collateral proceeding such as this. The
constitutional right to counsel applies at all critical stages of the
process. (People v. Rouse (2016) 245 Cal.App.4th 292, 296-297.)
The essence of a critical stage is “ ‘ “the adversary nature of the
proceeding, combined with the possibility that a defendant will be
prejudiced in some significant way by the absence of counsel.”
[Citation.]’ ” (Id. at p. 297.) The prima facie determination, in
which the court does not resolve disputed issues of fact, is non-
adversarial, and counsel is not constitutionally required. (See In
re Clark (1993) 5 Cal.4th 750, 780 [due process requires
appointment of counsel “if a petition attacking the validity of a
judgment states a prima facie case leading to issuance of an order
to show cause”]; People v. Barton (1978) 21 Cal.3d 513, 519, fn. 3
[same].)
Defendant was therefore not entitled to counsel at the
prima facie stage. Although defendant does not otherwise
challenge the merit of the trial court’s ruling, we briefly address
it. The trial court mistakenly relied on the boxes defendant did
and did not mark in his petition, in order to conclude defendant
was the actual killer. However, the facts of the crime as set forth
in the appellate opinion, as well as the fact that defendant alone
was found to have personally used a firearm, confirm that
defendant was, in fact, the actual killer, and therefore ineligible
for relief.
///
///
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
RUBIN, P.J.
WE CONCUR:
BAKER, J.
MOOR, J.
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