Filed 4/29/21 P. v. Salamanca 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, B300962
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA082067)
v.
GUMARO SALAMANCA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Allen J. Webster, Jr., Judge. Affirmed in part,
reversed in part, and remanded for further proceedings.
Tanya Dellaca, 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 David W. Williams, Deputy
Attorneys General, for Plaintiff and Respondent.
___________________________________
A jury convicted Gumaro Salamanca of first degree murder,
attempted willful, deliberate and premeditated murder, and
shooting at an inhabited dwelling, and found true several firearm
and gang allegations. The trial court sentenced him to 50 years
to life in prison. We conditionally reversed the conviction.
(People v. Salamanca (Jan. 13, 2016, B254814) [nonpub. opn.].)
In our opinion on Salamanca’s prior appeal we recited the
facts as follows:
“Defendant is a member of the Compton Varrio 70 (CV70)
street gang. On October 5, 2005, CV70 gang leader David
Guerrero ordered several gang members driving in two cars to
commit three shootings as part of a longstanding conflict between
CV70 and ‘Piru,’ a rival gang. Following Guerrero’s instructions,
defendant drove several fellow CV70 members to a gas station,
where two individuals exited his car and shot Charles Smith and
Jazmine McKinney with two handguns and an AK-47 assault
rifle. Both victims survived. Defendant then drove to Gibson
Street, where someone in the car leaned out the front passenger
window and shot at a house with the AK-47. Finally, he drove to
a parked car containing Dewan Ferguson and Melvin Walker,
members of the Leuders Park Piru street gang, a CV70 rival.
Someone from his vehicle shot the Piru members with the AK-47.
Ferguson survived but Walker was killed. [¶] . . . [¶]
“On March 1, 2007, detectives interrogated defendant . . .
[¶] . . . [D]efendant stated . . . [h]e knew Danny Guerrero, as they
played Xbox together, including on October 5, 2005, the day of the
shooting. On that day, other people arrived at the house after he
did, but he could not remember their names. He did not associate
with those people, but merely played Xbox with Danny Guerrero.
He was nevertheless ordered by a CV70 member whose name he
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did not know but whom he identified from a photograph as Jose
Encisco, to ‘go for a ride,’ with defendant driving his own car.
“Defendant left the house in his Honda with two
passengers whose names he did not know, one in the front seat
beside him and one in back. He later identified the one in back
as CV70 member David Covarrubias. He could not describe the
front passenger, even as to his ethnicity or age, and never spoke
to him. During the drive, defendant was directed by someone on
the phone. He at first denied knowing who directed him by
phone, saying ‘it could have been anybody,’ but eventually
admitted it was David Guerrero. David Guerrero informed
defendant he (David) was following in a car with other CV70
members, and instructed him to pull over to a gas station.
“When defendant stopped at the gas station, his passengers
got out and he shortly thereafter ‘heard some gun shots.’ He did
not see where the passengers were shooting because, he stated,
he ‘was actually focused on, you know, on what was going on. I
just, you know, kind of like turned back and when I turned back
they were already getting inside the car. So at that point I was, I
was thinking, you know, I should drive away or whatever. I don't
know, like, it was just too much stuff that was coming through
my mind.’
“Guerrero then told defendant to drive to a specific house
and stop. When he did so, his passengers half-exited the car and
shot at the house, after which defendant drove them back to the
Guerrero house. Once there, he transferred to an SUV,
accompanied by Alejandro Perez, who now had the AK-rifle, and
was directed by David Guerrero to drive to a specified location.
When he arrived, Perez shot Ferguson and Walker from
defendant’s car.
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“Throughout the interrogation defendant minimized his
role in the shootings. He claimed he had gone to the Guerrero
house only to play Xbox with Danny Guerrero (it was later
revealed that Danny Guerrero was incarcerated in San
Bernardino at the time of the shootings) and repeatedly stated he
had not wanted to drive with CV70 members but was forced to at
gunpoint. Defendant claimed not to have seen any gun until he
was already on the road and not to have seen any of the
shootings, even those committed by his passengers from his
vehicle, but merely heard shots. He was unable to identify either
the passenger who sat in the front seat during the first drive or
any type of gun used in the shootings, claiming he could not
distinguish between a revolver or semiautomatic handgun
because he said he did not ‘know about those revolvers,’ and could
not tell if the passenger’s gun was a pistol or rifle because the
passenger ‘had it under his, his sweater or something.’
(Defendant later admitted the front seat passengers on both
drives used an AK-rifle.)” (People v. Salamanca, supra, B254814,
at pp. 2-5.)
We concluded that Salamanca’s “conviction for . . . murder
may have been based on the . . . theory of natural and probable
consequences.”
In 2019, Salamanca filed a petition for resentencing under
1
Penal Code section 1170.95. 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
1
All undesignated statutory references will be to the Penal
Code.
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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 Salamanca was ineligible for relief
because he was a “major participant” in the murder and directly
“aided and abetted because he was the one who drove not one
place, but three places where three different crimes occurred.”
The court therefore denied Salamanca’s petition without issuing
an order to show cause or holding an evidentiary hearing.
Salamanca argues that with respect to both his murder and
attempted murder convictions, the court erred in denying his
petition without issuing an order to show cause.
A. Murder Conviction
Respondent concedes that the trial court should have
issued an order to show cause as to Salamanca’s murder
conviction. We agree.
Section 1170.95 permits “[a] person convicted of felony
murder or murder under a natural and probable consequences
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
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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
when the record shows as a matter of law that the petitioner is
not eligible for relief.
Here, the record of conviction does not establish as a matter
of law that Salamanca is ineligible for relief under section
1170.95. The trial court ruled that Salamanca was a major
participant and a direct aider and abettor, but as Respondent
concedes, the record of conviction does not establish this fact as a
matter of law. Trial court’s authority at the prima facie stages is
limited to consideration of “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).”
(People v. Drayton (2020) 47 Cal.App.5th 965, 980.) Nothing in
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the record of conviction establishes that Salamanca was
necessarily a major participant in the murder, nor that he was
convicted as a direct aider and abettor. The matter should
therefore be remanded for an order to show cause and evidentiary
hearing under section 1170.95, subdivision (d).
B. Attempted Murder Conviction
Salamanca further argues that a section 1170.95 hearing
should be conducted concerning his conviction for attempted
murder. Every court that has considered this issue has
rejected it. (People v. Harris (2021) 60 Cal.App.5th 557, 570;
People v. Alaybue (2020) 51 Cal.App.5th 207, 222-223; see
also People v. Love (2020) 55 Cal.App.5th 273, 285, review
granted Dec. 16, 2020, S265445; People v. Larios (2019) 42
Cal.App.5th 956, 970, review granted Feb. 26, 2020,
S259983; People v. Medrano (2019) 42 Cal.App.5th 1001,
1017-1018, review granted Mar. 11, 2020, S259948; People v.
Munoz (2019) 39 Cal.App.5th 738, 754, review granted Nov.
26, 2019, S258234; People v. Lopez (2019) 38 Cal.App.5th
1087, 1105, review granted Nov. 13, 2019, S258175.)
We agree with these decisions on this point. The plain
language of section 1170.95, subdivision (a) limits relief to
persons “convicted of felony murder or murder under a
natural and probable consequences theory.” No language in
section 1170.95 mentions relief to persons convicted of
attempted murder.
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DISPOSITION
The trial court’s order denying Salamanca’s petition is
reversed as to his murder conviction and affirmed as to his
attempted murder conviction, and the matter remanded for
further proceedings.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
*
FEDERMAN, 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.
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