Filed 4/2/21 P. v. Cordero CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
THE PEOPLE, B307245
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA129304)
v.
DANIEL CORDERO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, John A. Torribio, Judge. Reversed and
remanded.
Paul Couenhoven, 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, Idan Ivri and Michael Katz, Deputy Attorneys
General, for Plaintiff and Respondent.
____________________________
In 2012, Daniel Cordero and Christian Calderon fired shots
at an occupied vehicle, one of Calderon’s shots killing an
occupant.
At trial, “[t]he prosecution relied on two separate theories
to argue Cordero was guilty of murder: He aided and abetted the
murder itself, or he aided and abetted the assault that naturally
and probably resulted in the murder.” The jury was instructed
“on both theories, and . . . found him guilty of second degree
murder without specifying which theory it credited.” (People v.
Cordero (Apr. 30, 2018, B280146) [nonpub. opn.] at p. *14].)
Cordero was sentenced to a long prison term, and we affirmed the
conviction.
In 2019, Cordero filed a petition for resentencing under
Penal Code section 1170.95.1 Relief under section 1170.95 is
available to an inmate who was convicted of murder under the
natural and probable consequences, aiding and abetting doctrine,
but not to “a major participant in the underlying felony who acted
with reckless indifference to human life.” (Stats. 2018, ch. 1015,
§ 1, subd. (f); People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
The trial court found Cordero was ineligible for relief as a matter
of law because he was a major participant in the underlying
felony, and acted with reckless indifference to human life. It
therefore denied the petition without appointing counsel.
Cordero argues the court erred in denying him counsel to
assist with his petition. Respondent concedes the point, and we
agree.
Section 1170.95 permits “[a] person convicted of felony
murder or murder under a natural and probable consequences
1All further statutory references are to the Penal Code
unless otherwise indicated.
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theory” to petition the sentencing court to vacate the conviction
and resentence on any remaining counts if the person could not
be convicted of murder under the new section 188. (§ 1170.95,
subd. (a).) A petition for relief under section 1170.95 must
include: “(A) A declaration by the petitioner that he or she is
eligible for relief under this section, based on all the
requirements of subdivision (a). [¶] (B) The superior court case
number and year of the petitioner’s conviction. [¶] (C) Whether
the petitioner requests the appointment of counsel.” (§ 1170.95,
subd. (b)(1).)
If the petition contains the required information, the court
must “review the petition and determine if the petitioner has
made a prima facie showing that the petitioner falls within the
provisions of [section 1170.95].” (§ 1170.95, subd. (c).) If the
petitioner has made this initial prima facie showing, he or she is
entitled to appointed counsel, if requested, and the prosecutor
must file a response, and the petitioner may file a reply. (Ibid.)
The court then reviews the petition a second time. If it concludes
in light of this briefing that the petitioner has made a prima facie
showing of entitlement to relief, it must issue an order to show
cause and hold an evidentiary hearing to determine whether to
vacate the murder conviction and recall the sentence and
resentence the petitioner on any remaining counts. (Id. at subds.
(c) & (d)(1).)
To determine whether a petitioner has made a prima facie
case for relief under section 1170.95, a trial court may look to the
record of conviction, including the court file and the opinion from
the petitioner’s original appeal from his or her conviction. The
contents of the record of conviction defeat a prima facie showing
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when the record shows as a matter of law that the petitioner is
not eligible for relief.
Here, the record of conviction does not show as a matter of
law that Cordero is ineligible for relief under section 1170.95. As
we held in ruling on his direct appeal, the prosecution relied on
two theories to argue Cordero was guilty of murder, including
that he aided and abetted an assault that naturally and probably
resulted in the murder, which would potentially render him
eligible for relief under section 1170.95. It is not apparent from
the record whether the jury embraced this theory. We therefore
conclude Cordero must be appointed counsel to assist with his
petition. We do not hold that he is entitled to relief, nor that the
court must hold an evidentiary hearing.
Cordero further argues the trial court’s error was of
constitutional magnitude. We disagree. (People v. Falcon (2020)
57 Cal.App.5th 272 [no Sixth Amendment right to counsel in
section 1170.95 proceeding]; see also People v. Frazier (2020) 55
Cal.App.5th 858 [no due process right to counsel under section
1170, subdivision (d)].)
DISPOSITION
The trial court’s order denying Cordero’s petition is
reversed, the matter remanded for further proceedings.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J. BENDIX, J.
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