Filed 3/25/21 P. v. Murillo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B304106
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA134222)
v.
MAXIMILIANO GUADALUPE
MURILLO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Patrick Connolly, Judge. Affirmed.
Janet Gusdorff, 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, Kristen J. Inberg and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
******
Maximiliano Guadalupe Murillo (defendant) appeals the
trial court’s summary denial of his petition for resentencing
under Penal Code section 1170.95.1 Because his jury was not
instructed on either of the theories of liability invalidated by
section 1170.95, we affirm the summary denial of his petition for
relief.
FACTS AND PROCEDURAL BACKGROUND
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I. Facts
A. The underlying crime
In April 2012, defendant and a fellow gang member, Jose
Antonio Valdes (Valdes), drove into rival gang territory. They
were joined by a third fellow gang member, Ricardo Virgen
(Virgen), who drove separately. The three men came upon a rival
gang member, and one of them—namely, Virgen—fired 10 shots
from two different firearms, killing the rival gang member
instantly.
B. Prosecution, conviction and appeal
The People charged defendant, Valdes, and Virgen, with
murder (§ 187, subd. (a)), and further alleged that the murder
was gang related as defined in section 186.22, subdivision
(b)(1)(C). The People further alleged that a principal in the crime
discharged a firearm (§ 12022.53, subds. (d) & (e)(1)), and that
Valdes and Virgen had personally discharged a firearm
(§ 12022.53, subd. (d)). The matter proceeded to a joint trial. A
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2 We draw these facts from our prior, unpublished appellate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. (People v. Murillo et al.
(Mar. 8, 2018, B275684) [nonpub. opn.].)
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jury found defendant guilty of second degree murder, and found
the gang allegation and the principal’s use of a firearm allegation
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to be true.
The trial court sentenced defendant to prison for 40 years
to life, comprised of 15 years to life for second degree murder plus
25 years to life for a principal’s use of a firearm.
Defendant appealed his conviction and, in an unpublished
opinion, we affirmed his conviction but struck the portion of his
sentence imposing but staying the gang enhancement and
remanded to allow the trial court to consider its newly conferred
discretion to strike the firearm enhancement; on remand, the
trial court declined to exercise its discretion.
II. Procedural Background
On June 24, 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.” The People opposed the petition on
constitutional grounds and on the merits, although the People
later abandoned their constitutional challenge.
After appointing counsel for defendant and holding a
hearing, the trial court on December 19, 2019, denied defendant’s
3 The jury convicted Virgen of first degree murder and found
that he personally discharged a weapon; and convicted Valdes of
second degree murder but did not find true the allegation that he
personally discharged a firearm.
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petition on the ground that his jury had not been instructed on
any of the legal theories invalidated by section 1170.95.
Defendant timely appealed this denial.
DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1170.95 petition. Defendant concedes that
the trial court did not instruct the jury with the standard
instructions for liability under a felony murder or natural and
probable consequences theory, but asserts that the court
instructed on the natural and probable consequences theory “in a
roundabout way” because the jury instruction defining murder
defined “implied malice” as existing when (1) a defendant
intentionally commits an act, (2) “[t]he natural and probable
consequences of the act were dangerous to human life,” (3) the
defendant “knew his act was dangerous to human life” and (4) the
defendant “deliberately acted with conscious disregard for human
life.” (Italics added.) Because the resolution of defendant’s
argument turns on the propriety and meaning of the jury
instructions, our review is de novo. (People v. Nelson (2016) 1
Cal.5th 513, 538.)
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
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the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine,”
(2) he “was convicted of . . . second degree murder following a
trial,” and (3) he “could not be convicted of . . . second degree
murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a).) A “‘prima facie showing
is one that is 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.)
Where a defendant in his petition alleges each element
necessary to make out a prima facie case for relief under section
1170.95, a trial court evaluating whether a defendant has made a
prima facie showing in a section 1170.95 petition is not required
to accept those allegations at face value and may also examine
the record of conviction. (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 (Tarkington); 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; People v. Torres (2020) 46 Cal.App.5th 1168, 1178,
review granted June 24, 2020, S262011 (Torres).) However, 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.” (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”].)
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Here, the trial court correctly concluded that defendant did
not make out a prima facie case for relief because the record of
conviction establishes, as a matter of law, that he is not eligible
for relief. A defendant is ineligible for relief under section
1170.95 as a matter of law where “the jury was not instructed on
a natural and probable consequences or felony-murder theory of
liability.” (People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5,
review granted May 15, 2020, S262835.) The sole theory of
liability presented to the jury in defendant’s case was the theory
that he directly aided and abetted the others in the shooting; his
jury was not instructed on the natural and probable
consequences or felony-murder theories. We reject defendant’s
contention that because the court’s definition of implied malice
used the phrase “natural and probable consequences” that the
jury was implicitly instructed on a natural and probable
consequences theory: “The ‘natural [and probable] consequences’
language in the instruction for second degree murder does not
transform [a defendant’s] conviction into one for murder under
the natural and probable consequences doctrine within the
meaning of section 1170.95.” (People v. Soto (2020) 51
Cal.App.5th 1043, 1059, review granted Sept. 23, 2020, S263939.)
In the implied malice instruction, the phrase “natural and
probable consequences” is used to hold a defendant liable for the
“natural and probable consequences” of his own act or failure to
act; by contrast, the “natural and probable consequences” theory
is a theory of vicarious liability that is used to hold a defendant
liable for another person’s criminal conduct as long as the other
person’s criminal conduct is a “natural and probable
consequence” of what defendant agreed to aid and abet—and,
critically, irrespective of the defendant’s own intent regarding
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that further criminal conduct. As Soto noted, these are
“distinctly different concepts” (id. at pp. 1056-1057), and, like
Soto, we decline to equate them.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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