People v. Franco CA2/2

Filed 5/7/21 P. v. Franco CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO

THE PEOPLE, B305769

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA142960)
v.

SALVADOR A. FRANCO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County. John A. Torribio, Judge. Affirmed.
Danalynn Pritz, 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, Senior
Assistant Attorney General, Charles S. Lee and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
 Salvador Franco appeals the summary denial of a petition
for resentencing under Penal Code1 section 1170.95.
Following a jury trial in 2018, appellant was convicted of
the second degree murder of Raul Cervantes in violation of
section 187, subdivision (a), and sentenced to a term of 15 years
to life in state prison. Appellant filed a petition for resentencing
under section 1170.95 on February 24, 2020. The trial court
summarily denied the petition after finding that the prosecution
did not proceed on a felony-murder theory or under the natural
and probable consequences doctrine. Appellant contends the trial
court erred in denying his petition without appointing counsel
and without giving the parties an opportunity to brief the matter.
We disagree: The trial court did not err in conducting its prima
facie review for eligibility without first appointing counsel.
Although the trial court improperly relied on the preliminary
hearing transcript and its own memory of the case, the court
correctly ruled appellant is ineligible for relief under section
1170.95 as a matter of law because appellant was not convicted
under a felony-murder theory or the natural and probable
consequences doctrine.
FACTUAL BACKGROUND2
Around 1:40 in the afternoon on July 30, 2016, Raul
Cervantes was fatally shot as he stood talking with another man

1 Undesignated statutory references are to the Penal Code.
2 This statement of facts is drawn from the record of
appellant’s direct appeal of his conviction (case number
B289440), which he abandoned and was subsequently dismissed.
In the instant appeal, we granted respondent’s request for
judicial notice of the record from the original appeal, which

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on the Gage Bridge in Bell Gardens. The shooter wore an
oversized black hoodie and an LA Dodgers hat, which concealed
his face. One witness saw the shooter run up the embankment
and onto the bridge before shooting Cervantes in the side with
what appeared to be a long-barreled rifle.
Officers recovered four expended .22-caliber long rifle
casings, which could have been fired from a rifle or a handgun.
A dog handler traced the shooter’s path down the embankment,
across Gage Avenue, and onto River Drive, where the shooter
appeared to have fled in a car. Using surveillance video, police
identified the car as a gray Nissan, which Jazmine N. had rented
the day before from Hertz.
Jazmine lived with appellant Franco in a house near the
Gage Bridge. On July 30, 2016, Jazmine awoke to find Franco
had taken the rental car. Jazmine called Franco, and he told her
not to call him because he “was doing something right now.”
Later when she heard police activity on the Gage Bridge,
Jazmine called Franco again, and this time he told her to meet
him at a particular house on Vinevale Avenue, a Bell Gardens
Locos gang hangout. When Jazmine arrived at the house Franco
told her what had happened on the bridge. He sounded panicked
and scared.
Franco’s codefendant, Manuel Garibay, was arrested about
a month after the shooting. While Garibay was in custody, police
placed a paid informant in his cell, and their recorded
conversation was played for the jury. Garibay told the informant
he laid down in the seat of the car and his “homie” drove him to

includes the clerk’s transcripts, jury instructions, and reporter’s
transcripts from the trial.

3
the spot where he got dropped off, and then he “did [his] thing.”
Garibay said he “got up on them” and “hit” “[b]oth of them”
“[l]ike, 15 times.” Garibay described the gun he used as “a big-
ass rifle.” After the shooting Garibay ran across the street,
jumped over the guardrail, and ran down the embankment where
his “homie” was waiting in the gray Nissan. Garibay hopped in
the car and they took off.
Garibay told the informant he was wearing a black sweater
with a hood and an “LA” hat that covered his face. Both Franco
and Garibay were admitted members of the Bell Gardens Locos
criminal street gang. Garibay told the informant the victim was
a member of the rival Walnut Street gang. When an officer
walked Franco past Garibay’s cell, Garibay identified Franco to
the informant as his “homie.”
Franco’s and Garibay’s phones’ cell tower usage around the
time of the shooting was consistent with the movement of the
gray Nissan seen in the surveillance videos near the Gage Bridge.
DISCUSSION
Summary Denial of the Section 1170.95 Petition
Without Appointment of Counsel Was
Appropriate Because Appellant Was Ineligible
for Relief as a Matter of Law
A. Relevant proceedings
In his petition for resentencing appellant averred: (1) a
complaint, information, or indictment was filed against him that
allowed the prosecution to proceed under the theory of felony-
murder or the natural and probable consequences doctrine; (2) he
was convicted of first or second degree murder pursuant to the
felony-murder rule or the natural and probable consequences
doctrine; (3) he could not now be convicted of first or second

4
degree murder because of the changes made to sections 188 and
189, which became effective on January 1, 2019; (4) he was not
the actual killer; (5) he did not, with intent to kill, aid or abet the
actual killer; (6) he was not a major participant in the felony, nor
did he act with reckless indifference to human life; and (7) he was
convicted of second degree murder under the natural and
probable consequences doctrine and could not now be convicted of
murder because of the changes made to sections 188 and 189.
Appellant supported his petition with numerous minute orders
from his trial and requested that the court appoint counsel.
On March 11, 2020, the superior court summarily denied
the petition without a hearing and without appointing counsel.
Stating that it “clearly remember[ed] this case,” the court drew
from the preliminary hearing transcript to describe the facts of
the case: “The petitioner dropped off the co-defendant who went
up the stairs to the roadway with the sole purpose of shooting the
victims. When co-defendant reached the top of the stairs he
ambushed the victims. Then the co-defendant ran back down the
stairs where petitioner picked him up.” While in custody, the
shooter (codefendant) told an informant “he was dropped off by
petitioner on one side of the bridge went up the stairs and shot
the victims, ran across the bridge to the opposite side where he
was picked up by petitioner.”
The court denied the petition, finding that “[t]hese facts do
not bring into play the criteria of 1170.95(a).” The court
explained that appellant “was clearly an aider and abettor,” and
the People had not proceeded under a felony-murder theory or
the natural and probable consequences doctrine. The court
reiterated that it had reviewed the transcript of the preliminary
hearing in reaching its decision.

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 B. The trial court may deny a section 1170.95 petition in
the prima facie stage of review without first appointing
counsel if the record of conviction demonstrates the
petitioner is ineligible for relief as a matter of law.
The Legislature enacted Senate Bill No. 1437 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. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).)
To accomplish this objective, Senate Bill No. 1437 amended
section 188, subdivision (a)(3), defining malice, to require that all
principals to murder must act with express or implied malice to
be convicted of that crime, with the exception of felony murder
under section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2.)
The amendment further provides that “[m]alice shall not be
imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3); People v. Lopez (2019) 38 Cal.App.5th
1087, 1103, review granted Nov. 13, 2019, S258175; People v.
Lewis (2020) 43 Cal.App.5th 1128, 1135, review granted Mar. 18,
2020, S260598 (Lewis).) The Legislature also amended section
189 to include the new requirement that a participant in a
specified felony during which a death occurs may be convicted of
murder for that death only if it is proved that the defendant was
the actual killer, an aider and abettor to the murder who acted
with the intent to kill, or a major participant in the underlying
felony who acted with reckless indifference to human life. (Stats.
2018, ch. 1015, § 3; § 189, subd. (e)(1)–(3).)

6
 In addition to these amendments, Senate Bill No. 1437
added section 1170.95 to provide a procedure by which those
convicted of felony murder or murder under a natural and
probable consequences theory may seek retroactive relief if they
could no longer be convicted of murder because of the changes to
sections 188 or 189. (Martinez, supra, 31 Cal.App.5th at pp. 722–
723.)
If the petition meets the requirements of section 1170.95,
subdivisions (a) and (b), the superior court undertakes a two-step
prima facie analysis set forth in subdivision (c) before an order to
show cause may issue.3 (People v. Nunez (2020) 57 Cal.App.5th
78, review granted Jan. 13, 2021, S265918 (Nunez); People v.
Verdugo (2020) 44 Cal.App.5th 320, 327–328, review granted
Mar. 18, 2020, S260493 (Verdugo); Lewis, supra, 43 Cal.App.5th
at pp. 1136, 1140, rev.gr.) In the first step of this analysis, the
superior court conducts a sua sponte screening of the petition to
verify the petitioner’s eligibility for relief under the statute. At
this stage, the court may “examine readily ascertainable
information in the record of conviction and . . . if that threshold
review ‘establishes the petitioner is ineligible for relief as a

3 Section 1170.95, subdivision (c) provides: “The court shall
review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section. If the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner. The prosecutor
shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30
days after the prosecutor response is served. These deadlines
shall be extended for good cause. If the petitioner makes a prima
facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.”

7
matter of law because he or she was convicted on a ground that
remains valid notwithstanding Senate Bill [No.] 1437’s
amendments to sections 188 and 189’ ” (Nunez, at p. 89, rev.gr.),
the court may dismiss the petition without the appointment of
counsel or briefing from the parties. (Lewis, supra, 43
Cal.App.5th at p. 1140, rev.gr.; Verdugo, supra, 44 Cal.App.5th at
p. 329, rev.gr.; People v. Offley (2020) 48 Cal.App.5th 588, 597;
People v. Edwards (2020) 48 Cal.App.5th 666, 674–675, review
granted July 8, 2020, S262481 (Edwards); People v. Tarkington
(2020) 49 Cal.App.5th 892, 900, review granted Aug. 12, 2020,
S263219 (Tarkington); but see People v. Cooper (2020) 54
Cal.App.5th 106, 109, review granted Nov. 10, 2020, S264684
(Cooper).)
On the other hand, if the record of conviction does not
indicate ineligibility as a matter of law, the court must proceed to
step two of the prima facie analysis. There, section 1170.95,
subdivision (c) requires the court to appoint counsel if requested
and accept briefing from the parties on the issue of whether the
petitioner is “entitled to relief.”4 (Verdugo, supra, 44 Cal.App.5th

4 If, after the parties’ briefing, the petitioner has made a
prima facie showing that he is entitled to relief because there
remains no proof of ineligibility as a matter of law, “the court
shall issue an order to show cause” why relief should not be
granted. (§ 1170.95, subd. (c); see Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 851 [“A prima facie showing is one that
is sufficient to support the position of the party in question”]; In
re Edward H. (1996) 43 Cal.App.4th 584, 593 [“A ‘prima facie’
showing refers to those facts which will sustain a favorable
decision if the evidence submitted in support of the allegations by
the petitioner is credited”].)

8
at pp. 332–333, rev.gr.) But as in the initial prima facie review,
the court does not engage in factfinding and draws “all factual
inferences in favor of the petitioner.” (Verdugo, at p. 329; People
v. Drayton (2020) 47 Cal.App.5th 965, 982.)
As appellant notes, there is a split of authority on the issue
of when a court must appoint counsel and give the parties an
opportunity to brief the matter⎯either before or after performing
any review under section 1170.95, subdivision (c), and the issue is
currently pending before the California Supreme Court.5 While
the majority of cases hold a court should conduct an initial prima
facie review to determine whether, in light of the court file, the
petition presents an arguable claim for relief before appointing
counsel and accepting briefing, one court has disagreed. (Cooper,

At this point, the People may concede that relief should be
granted, or in a hearing to determine whether the petitioner is
entitled to relief, bear the burden of proving beyond a reasonable
doubt that the petitioner is ineligible. (§ 1170.95, subd. (d).) At
such a hearing, “[t]he prosecutor and the petitioner may rely on
the record of conviction or offer new or additional evidence to
meet their respective burdens.” (§ 1170.95, subd. (d)(3).)
5 The California Supreme Court has undertaken review of
the following issues in Lewis, Verdugo, Edwards, Tarkington, and
Cooper: “(1) May superior courts consider the record of conviction
in determining whether a defendant has made a prima facie
showing of eligibility for relief under Penal Code section 1170.95?
(2) When does the right to appointed counsel arise under Penal
Code section 1170.95, subdivision (c)?” (Lewis, S260598
[as of Nov. 12, 2020], archived at
.)

9
supra, 54 Cal.App.5th at p. 112, rev.gr.) In Cooper, the court held
that upon the filing of a “facially sufficient petition requesting
counsel,” that is, one “that includes all the information required
under section 1170.95, subdivision (b),” the court must
immediately appoint counsel and accept briefing from the parties
in accordance with section 1170.95, subdivision (c) before the
court may deny the petition. (Cooper, supra, 54 Cal.App.5th at
pp. 112, 114, rev.gr.)
Cooper thus interprets section 1170.95, subdivision (c) to
permit only one prima facie review before an order to show cause
issues. (Cooper, supra, 54 Cal.App.5th at p. 123, rev.gr.)
According to Cooper, the first sentence of section 1170.95,
subdivision (c) is merely “a topic sentence summarizing the trial
court’s task before issuing an order to show cause, and the
following sentences . . . specify the procedure in undertaking that
task.” (Cooper, at p. 118, rev.gr.) But this reading of the statute
renders the first sentence of subdivision (c) of section 1170.95
superfluous, effectively striking it from the statute. Courts may
not rewrite statutes in this manner. (People v. Franco (2018) 6
Cal.5th 433, 437 [“ ‘ “[c]ourts should give meaning to every word
of a statute if possible, and should avoid a construction making
any word surplusage” ’ ”]; People v. Massicot (2002) 97
Cal.App.4th 920, 925 [“In construing a statute, it is the role of the
judiciary to simply ascertain and declare what is in terms or in
substance contained in the statute, not to insert what has been
omitted or omit what has been included”].)
As in all statutory interpretation, our reading of section
1170.95 must give meaning to all parts of the statute to the
extent possible. (People v. Shabazz (2006) 38 Cal.4th 55, 67
[“ ‘The meaning of a statute may not be determined from a single

10
word or sentence; the words must be construed in context, and
provisions relating to the same subject matter must be
harmonized to the extent possible’ ”]; Verdugo, supra, 44
Cal.App.5th at p. 329, rev.gr.) “To that end, we generally must
‘accord[] significance, if possible, to every word, phrase and
sentence in pursuance of the legislative purpose,’ and have
warned that ‘[a] construction making some words surplusage is to
be avoided.’ ” (People v. Valencia (2017) 3 Cal.5th 347, 357;
People v. Abrahamian (2020) 45 Cal.App.5th 314, 332.)
Because the Cooper court’s reading of section 1170.95,
subdivision (c) excises a portion of the statutory language, we do
not find its interpretation to be persuasive. Following the
majority of courts to consider the issue, and pending further
guidance from our Supreme Court, we conclude that the trial
court did not err in conducting a prima facie review for eligibility
under section 1170.95 without first appointing counsel or
conducting a hearing.
C. Appellant is ineligible for relief under section 1170.95
as a matter of law because the record demonstrates he was
not convicted under the felony-murder rule or the natural
and probable consequences doctrine.
To be eligible for relief under section 1170.95, the petitioner
must make a prima facie showing that he or she “could not be
convicted of first or second degree murder because of changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subd. (a)(3).) Here, the trial court correctly denied appellant’s
petition because the record reveals he was convicted on a theory
of murder that “remains valid notwithstanding Senate Bill [No.]
1437’s amendments to sections 188 and 189.” (Verdugo, supra,
44 Cal.App.5th at p. 330, rev.gr.) Specifically, the jury

11
instructions given at trial establish that appellant was convicted
of murder as a direct aider and abettor. He could not have been
convicted under a felony-murder theory or the natural and
probable consequences doctrine for the simple reason that the
jury was not instructed on either of these theories.
Although the trial court denied appellant’s petition on
other grounds, we will uphold the ruling on appeal if it is
supported by any legally correct theory, even if the court’s stated
reasons were incorrect. (People v. Hopson (2017) 3 Cal.5th 424,
459 [“a ruling will not be disturbed on appeal merely because it
was given for a wrong reason, if the ruling would otherwise be
correct ‘ “ ‘upon any theory of the law applicable to the case,’ ” ’
and ‘ “ ‘regardless of the considerations which may have moved
the trial court to its conclusion’ ” ’ ”]; People v. Zapien (1993) 4
Cal.4th 929, 976; D’Amico v. Board of Medical Examiners (1974)
11 Cal.3d 1, 19; see also People v. Smithey (1999) 20 Cal.4th 936,
972.)
The jury in this case was instructed on aiding and abetting
liability (CALCRIM Nos. 400 & 401) and the definition and
elements of murder (CALCRIM Nos. 500, 520 & 521). No
instructions on felony murder or the natural and probable
consequences doctrine were given.6 Instead, all of the

6 Such instructions necessarily would have included
CALCRIM No. 403, the pattern instruction on the natural and
probable consequences doctrine, and CALCRIM No. 540B, the
instruction on first degree felony murder, coparticipant allegedly
committed fatal act. In addition, had the prosecution proceeded
on multiple murder theories, the trial court would also have
given CALCRIM No. 548, Murder: Alternative Theories.

12
instructions on murder required a finding that appellant acted
with malice.7

7 Although the instructions on implied malice murder and
aiding and abetting under the natural and probable consequences
doctrine both refer to the “natural and probable consequences” of
the defendant’s act, the concepts are distinctly different. (People
v. Soto (2020) 51 Cal.App.5th 1043, 1056, review granted
Sept. 23, 2020, S263939 (Soto).) Soto explained the distinction
between implied malice and the natural and probable
consequences doctrine: “Implied malice is a mental state for the
commission of the crime of second degree murder, either by the
principal or as an aider and abettor . . . to murder.” (Ibid.,
rev.gr.) The natural and probable consequence doctrine, on the
other hand, “is a theory of liability by which an aider and abettor
who intends to aid a less serious crime can be convicted of a
greater crime. This doctrine comes into play when ‘an accomplice
assists or encourages a confederate to commit one crime, and the
confederate commits another, more serious crime (the nontarget
offense).’ [Citation.] Applying the natural and probable
consequences doctrine, ‘a defendant may be held criminally
responsible as an accomplice not only for the crime he or she
intended to aid and abet (the target crime), but also for any other
crime that is the “natural and probable consequence” of the
target crime.’ [Citation.] Unlike aiding and abetting implied
malice murder, which requires the aider and abettor to (at least)
share the mental state of the actual perpetrator of implied malice
murder, ‘ “aider and abettor culpability under the natural and
probable consequences doctrine is not premised upon the
intention of the aider and abettor to commit the nontarget offense
[e.g., murder] because the nontarget offense was not intended at
all.” ’ ” (Id. at p. 1058, rev.gr.)
Here, appellant’s jury necessarily found him guilty of
murder based on his own actions and mental state as a direct

13
 A direct aider and abettor can be convicted of murder
notwithstanding the amendments to sections 188 and 189, which
changed nothing with regard to direct aider and abettor liability.
“One who directly aids and abets another who commits murder is
thus liable for murder under the new law just as he or she was
liable under the old law.” (Lewis, supra, 43 Cal.App.5th at
p. 1135, rev.gr.) Accordingly, appellant was required to make a
prima facie showing that he was not convicted as a direct aider
and abettor and thereby “ ‘falls within the provisions of’ the
statute.” (Lewis, at p. 1137; § 1170.95, subds. (a)(3) & (c).) He
failed to do so. His petition was therefore properly denied on the
ground that he was not entitled to relief as a matter of law
because he was not convicted under a theory of felony murder or
natural and probable consequences, the two theories affected by
Senate Bill No. 1437.
In sum, the allegations in the petition that appellant “could
not now be convicted of 1st or 2nd degree murder because of
changes made to Penal Code §§ 188 and 189” and that he was
“convicted of 2nd degree murder under the natural and probable
consequences doctrine” are contradicted by the record of
conviction. Because the record of conviction plainly shows that
appellant does not fall within the provisions of the statute, he
cannot make the first prima facie showing required under section
1170.95, subdivision (c). Appellant is thus ineligible for relief as
a matter of law, and the superior court properly denied his

aider and abettor. The natural and probable consequences
language in the implied malice instruction required the jury to
find malice, and thus did not transform appellant’s conviction
into one for murder under the natural and probable consequences
doctrine. (See Soto, supra, 51 Cal.App.5th at p. 1059.)

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petition. (§ 1170.95, subd. (c); Verdugo, supra, 44 Cal.App.5th at
p. 329, rev.gr.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

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