Filed 5/19/21 P. v. Curiel CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE, B306150
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA223606)
v.
JOSE CURIEL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura F. Priver, Judge. Affirmed.
Brett Harding Duxbury, 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, Amanda V. Lopez and David W. Williams,
Deputy Attorneys General, for Plaintiff and Respondent.
________________________
In 2004, a jury convicted Jose Curiel of first degree murder,
with true findings on gang and firearm enhancements. After
passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate
Bill 1437), Curiel petitioned for resentencing pursuant to Penal
Code section 1170.95.1 The trial court summarily denied the
petition, concluding that Curiel was ineligible because the
prosecution did not rely on the natural and probable
consequences doctrine or the felony-murder rule at trial, and the
jury was not instructed on these theories. Curiel appeals,
contending that the trial court erred by summarily denying his
petition without appointing counsel. We affirm the trial court’s
order.
FACTUAL AND PROCEDURAL BACKGROUND2
1. The murder, conviction, and appeal
In 2001, Curiel was a member of the 38th Street criminal
street gang. In early April 2001, a 38th Street gang member
known as “Woody” was killed near 43rd Street and Ascot Avenue
in Los Angeles. The “All For Crime” (A.F.C.) gang was believed
to be responsible.
On April 11, 2001, Curiel and other 38th Street gang
members discussed committing a drive-by shooting, to be carried
out using a stolen Chevy van.
1
All further undesignated statutory references are to the
Penal Code.
2 At Curiel’s request, we have taken judicial notice of this
court’s records in his direct appeal, No. B177695, including our
prior opinion in the case. (Evid. Code, §§ 451, 452, subd. (d),
459.) We derive the factual and procedural background in part
from our prior opinion.
2
That evening, Marcus Byrd was sitting in his car, talking to
another man about some tire rims, near the corner of Ascot
Avenue and 43rd Street. As Byrd began to drive away, the van
drove up and stopped in the middle of the street, blocking Byrd’s
path. One or more assailants exited the van and began shooting
at Byrd’s vehicle, repeatedly hitting him. Byrd died from
multiple gunshot wounds. Eyewitness statements to police and
bullet casings found at the scene suggested more than one
shooter participated in the attack.
The jury found Curiel guilty of the first degree murder of
Byrd (§ 187, subd. (a)), with a criminal street gang enhancement
(§ 186.22, subd. (b)(1)). It additionally found a principal in the
crime personally used and discharged a firearm, proximately
causing Byrd’s death. (§ 12022.53, subds. (b), (c), (d), (e)(1).) The
trial court sentenced Curiel to 50 years to life in prison. This
court affirmed the judgment in 2006. (People v. Curiel (Jan. 10,
2006, B177695) [nonpub. opn.].)
2. The section 1170.95 petition
On March 19, 2020, Curiel filed a section 1170.95 petition,
seeking resentencing on his murder conviction. Using a
preprinted form, he checked boxes stating that a charging
document had been filed against him allowing the prosecution to
proceed under the felony-murder rule or the natural and probable
consequences doctrine; he was convicted of first or second degree
murder under one of those theories; he could not now be
convicted of murder in light of changes to the law made by Senate
Bill 1437; he was not the actual killer, nor did he aid and abet the
actual killer with the intent to kill; and he was not a major
participant in the felony and did not act with reckless
3
indifference to human life. He also requested the appointment of
counsel.
On April 2, 2020, the trial court summarily denied the
petition. Curiel was not present, and was not represented by
counsel. In a memorandum of decision, the court explained: “A
review of the petition and the available materials from the court
file, including the jury instructions[,] reveals that the court did
not instruct the jury on either the felony murder rule or the
natural and probable consequences theory. Rather, the jury was
instructed that the intent to kill was required. Based upon the
verdict, it is clear that the jury found this intent as that was the
[sole] theory underlying the prosecution.” Accordingly, the court
found Curiel ineligible for relief, and denied the petition.
Curiel filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437
Senate Bill 1437, which took effect on January 1, 2019,
limited accomplice liability under the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder, to ensure that a person’s sentence is
commensurate with his or her individual criminal culpability.
(People v. Gentile (2020) 10 Cal.5th 830, 842–843; People v.
Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review
granted Mar. 18, 2020, S260493; People v. Munoz (2019) 39
Cal.App.5th 738, 749–750, 763, review granted Nov. 26, 2019,
S258234.)
Prior to Senate Bill 1437’s enactment, under the felony-
murder rule “a defendant who intended to commit a specified
felony could be convicted of murder for a killing during the felony,
or attempted felony, without further examination of his or her
4
mental state.” (People v. Lamoureux (2019) 42 Cal.App.5th 241,
247–248; People v. Powell (2018) 5 Cal.5th 921, 942.) Under the
natural and probable consequences doctrine, a defendant was
“liable for murder if he or she aided and abetted the commission
of a criminal act (a target offense), and a principal in the target
offense committed murder (a nontarget offense) that, even if
unintended, was a natural and probable consequence of the
target offense.” (Lamoureux, at p. 248.)
Senate Bill 1437 amended the felony-murder rule by
adding section 189, subdivision (e), which provides that a
participant in the perpetration of qualifying felonies is liable for
felony murder only if the person: (1) was the actual killer; (2) was
not the actual killer but, with the intent to kill, acted as a direct
aider and abettor; or (3) was a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in section 190.2, subdivision (d). (See People v.
Gentile, supra, 10 Cal.5th at p. 842.) It amended the natural and
probable consequences doctrine by adding subdivision (a)(3) to
section 188, which states that “[m]alice shall not be imputed to a
person based solely on his or her participation in a crime.”
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby persons convicted of murder under a now-
invalid felony-murder or natural and probable consequences
theory may petition for vacation of their convictions and
resentencing. A defendant is eligible for relief under section
1170.95 if he meets three conditions: (1) he must have been
charged with murder by means of a charging document that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine, (2) he must have been convicted of first or second degree
5
murder, and (3) he could no longer be convicted of first or second
degree murder due to changes to sections 188 and 189 effectuated
by Senate Bill 1437. (§ 1170.95, subd. (a).)
Evaluation of a section 1170.95 petition requires a multi-
step process: an initial review to determine the petition’s facial
sufficiency; a prebriefing, “ ‘first prima facie review’ ” to
preliminarily determine whether the petitioner is statutorily
eligible for relief as a matter of law; and a second, postbriefing
prima facie review to determine whether the petitioner has made
a prima facie case that he or she is entitled to relief. (People v.
Tarkington (2020) 49 Cal.App.5th 892, 897 (Tarkington), review
granted Aug. 12, 2020, S263219; Verdugo, supra, 44 Cal.App.5th
at pp. 327–330, rev.gr.)
When conducting the first prima facie review, the court
must determine, based upon its review of readily ascertainable
information in the record of conviction and the court file, whether
the petitioner is statutorily eligible for relief as a matter of law,
i.e., whether he or she was convicted of a qualifying crime,
pursuant to the natural and probable consequences doctrine or a
felony-murder theory. (Tarkington, supra, 49 Cal.App.5th at
pp. 897–898, rev.gr.; Verdugo, supra, 44 Cal.App.5th at pp. 329–
330, rev.gr.) If it is clear from the record of conviction that the
petitioner cannot establish eligibility as a matter of law, the trial
court may summarily deny the petition without appointing
counsel. (Tarkington, at pp. 898, 900–902; People v. Torres (2020)
46 Cal.App.5th 1168, 1173, review granted June 24, 2020,
S262011; Verdugo, at p. 332; People v. Lewis (2020) 43
Cal.App.5th 1128, 1139–1140, review granted Mar. 18, 2020,
S260598; but see People v. Cooper (2020) 54 Cal.App.5th 106, 123,
review granted Nov. 10, 2020, S264684 [under section 1170.95,
6
petitioners are entitled to appointment of counsel upon filing a
facially sufficient petition].)
If, however, the petitioner’s ineligibility is not established
as a matter of law, the court must appoint counsel and permit
briefing to determine whether the petitioner has made a prima
facie showing he or she is entitled to relief. (Verdugo, supra, 44
Cal.App.5th at p. 330, rev.gr.; Tarkington, supra, 49 Cal.App.5th
at p. 898, rev.gr.) If the petitioner makes such a showing, the
court must issue an order to show cause and conduct a hearing to
determine whether to vacate the murder conviction and
resentence the petitioner on any remaining counts. (§ 1170.95,
subds. (c), (d); People v. Nguyen (2020) 53 Cal.App.5th 1154,
1166.) At that hearing, the prosecution has the burden to prove,
beyond a reasonable doubt, that the defendant is ineligible for
resentencing. (§ 1170.95, subd. (d)(3).)
2. Denial of the petition was proper because the record of
conviction shows Curiel was ineligible as a matter of law
To be eligible for resentencing, Curiel was required to show
that he “could not be convicted of first or second degree murder
because of changes to Section 188 or 189” made by Senate Bill
1437. (§ 1170.95, subd. (a)(3).) The record of conviction
conclusively demonstrates that Curiel cannot make such a
showing. “[P]otential relief under section 1170.95 extends only to
those convicted of murder by operation of the natural and
probable consequence doctrine or of felony murder. [Citation.]”
(People v. Soto (2020) 51 Cal.App.5th 1043, 1056 (Soto), review
granted Sept. 23, 2020, S263939; People v. Lee (2020) 49
Cal.App.5th 254, 263–265, review granted July 15, 2020,
S262459.) Where the record shows, as a matter of law, that the
petitioner was not tried under either of these theories, he
7
necessarily “was convicted on a theory that survives the changes
to sections 188 and 189” enacted by Senate Bill 1437.
(Tarkington, supra, 49 Cal.App.5th at p. 899, rev.gr.)
Curiel’s jury was not instructed on either the natural and
probable consequences doctrine or the felony-murder rule;
therefore, he could not have been convicted based on either of
these theories. (See, e.g., Soto, supra, 51 Cal.App.5th at p. 1055
[trial court may rely on jury instructions when determining
whether petitioner has made a prima facie showing of
entitlement to relief]; People v. Edwards (2020) 48 Cal.App.5th
666, 674, review granted July 8, 2020, S262481 [where jury
instructions showed petitioner was not convicted under felony-
murder rule or natural and probable consequences theory, he
could not meet the statutory prerequisites for filing a
§ 1170.95 petition]; People v. Lewis, supra, 43 Cal.App.5th at
p. 1138, rev.gr. [where court file shows petitioner was convicted
of murder without instruction or argument on the felony-murder
rule or the natural and probable consequences doctrine, summary
denial is appropriate].)
Relying on People v. Cooper, supra, 54 Cal.App.5th 106,
review granted, Curiel argues that because he filed a facially
sufficient petition—that is, one in which the correct boxes were
checked—section 1170.95 entitled him to the appointment of
counsel. Further, he urges that a court is not authorized to
examine the record of conviction until the section 1170.95,
subdivision (d)(3) hearing stage. Our Supreme Court is currently
considering both questions. (People v. Lewis, S260598.)
Pending further guidance from our Supreme Court,
however, we are not persuaded by Curiel’s contentions. This
court, along with the majority of courts considering the issue, has
8
held that a trial court may summarily deny a petition without
appointing counsel if the record shows the defendant is ineligible
as a matter of law. (See, e.g., Tarkington, supra, 49 Cal.App.5th
at pp. 901–902, rev.gr.; Verdugo, supra, 44 Cal.App.5th at
pp. 332–333, rev.gr.; People v. Lewis, supra, 43 Cal.App.5th at
pp. 1139–1140, rev.gr.; People v. Cornelius (2020) 44 Cal.App.5th
54, 58, review granted Mar. 18, 2020, S260410.)
Likewise, numerous courts have rejected the argument that
a trial court is limited to consideration of the allegations in the
petition when determining whether the petitioner has made a
prima facie showing of eligibility. To the contrary, a court may
consider readily ascertainable information in the record of
conviction, such as the jury instructions at issue here. (See,
e.g., People v. Palacios (2020) 58 Cal.App.5th 845, 855–856,
review granted Feb. 24, 2021, S266701; People v. Gomez (2020) 52
Cal.App.5th 1, 15–16, review granted Oct. 14, 2020, S264033;
People v. Soto, supra, 51 Cal.App.5th at pp. 1054–1055, rev.gr.;
Tarkington, supra, 49 Cal.App.5th at pp. 899, 909, rev.gr.; People
v. Edwards, supra, 48 Cal.App.5th at pp. 673–674, rev.gr.;
Verdugo, supra, 44 Cal.App.5th at pp. 329–330, rev.gr.; People v.
Lewis, supra, 43 Cal.App.5th at p. 1138, rev.gr.)
Accordingly, because the jury instructions demonstrate
that Curiel is ineligible for section 1170.95 relief as a matter of
law, the trial court properly denied his petition.
9
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
EGERTON, J.
10
LAVIN, J., Dissenting:
For the reasons laid out in my dissent in People v.
Tarkington (2020) 49 Cal.App.5th 892, 917, review granted
August 12, 2020, S263219, and the holding and analysis in People
v. Cooper (2020) 54 Cal.App.5th 106, 109, review granted
November 10, 2020, S264684, I would reverse the order and
direct the trial court to conduct further proceedings in accordance
with Penal Code section 1170.95.
LAVIN, J.
1