Filed 6/15/21 P. v. Siqueros CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B305887
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA010224)
v.
MICHAEL SIQUEROS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Juan Dominguez, Judge. Reversed with
directions.
Robert E. Boyce, 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 Lee and Colleen M.
Tiedemann, Deputy Attorneys General, for Plaintiff and
Respondent.
I. INTRODUCTION
Defendant and appellant Michael Siqueros appeals from
the trial court’s denial of his Senate Bill No. 1437 (Senate Bill
1437) and Penal Code section 1170.951 petition for resentencing.2
We reverse with directions.
II. BACKGROUND
In 1992, a jury convicted defendant and his codefendant
Conrad Estrada of first degree murder (§ 187, subd. (a)), robbery
(§ 211), and burglary (§ 459). The jury found true as to both
defendants the special circumstance allegations that the murder
was committed during the commission of a robbery (§ 190.2,
1 All further statutory references are to the Penal Code.
2 One of the headings in the argument section of defendant’s
opening brief suggests that he also appeals from the trial court’s
denial of his motion for pretrial discovery. Defendant fails,
however, to make any argument concerning the trial court’s
ruling and has thus forfeited the issue on appeal. (Nelson v.
Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862
[“Appellate briefs must provide argument and legal authority for
the positions taken. ‘When an appellant fails to raise a point, or
asserts it but fails to support it with reasoned argument and
citations to authority, we treat the point as waived’”]; In re
Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“We
are not bound to develop appellants’ argument for them.
[Citation.] The absence of cogent legal argument or citation to
authority allows this court to treat the contention as waived”].)
2
subd. (a)(17)(i)) and a burglary (§ 190.2, subd. (a)(17)(vii))3 and
true as to Estrada and not true as to defendant the allegation
that each personally used a deadly and dangerous weapon—a
knife—during the commission of the felonies (§ 12022, subd. (b)).
The trial court found true the allegation that defendant had
suffered two prior serious felony convictions. (§ 667, subd. (a).) It
sentenced defendant to life in state prison without the possibility
of parole plus 10 years. A prior panel of this division affirmed
defendant’s conviction. (People v. Estrada (1994) 38 Cal.App.4th
1052, 1064.) The Supreme Court granted defendant’s petition for
review, and also affirmed his conviction. (People v. Estrada
(1995) 11 Cal.4th 568, 581–582.)
On February 28, 2019, defendant filed a petition for
resentencing pursuant to section 1170.95 and requested the trial
court appoint counsel to represent him. In his petition,
defendant declared that he was convicted of first degree felony
murder and could no longer be convicted of that offense due to the
January 1, 2019, changes to section 189 because he was not the
actual killer; he did not, with the intent to kill, aid and abet in
the murder; he was not a major participant in the felony or act
with reckless indifference to human life in the course of the
felony; and the murder victim was not a peace officer performing
his duties or defendant was not reasonably aware the victim was
a peace officer performing his duties. The court appointed the
Los Angeles County Public Defender’s Office to represent
defendant.
3 The robbery special circumstance is now subdivision
(a)(17)(A) and the burglary special circumstance is now
(a)(17)(G).
3
On July 1, 2019, the Los Angeles County District Attorney’s
Office filed its response to defendant’s section 1170.95 petition.
The Public Defender’s Office filed defendant’s reply on
August 7, 2019.
On February 25, 2020, defendant filed a motion for pretrial
discovery of Pitchess4 and Brady5 material. On March 13, 2020,
the El Monte Police Department filed its opposition to
defendant’s motion for pretrial discovery. On March 20, 2020,
the trial court denied defendant’s motion, ruling that the motion
was premature as it had not yet ruled on defendant’s section
1170.95 petition.
On March 24, 2020, the trial court issued its memorandum
of decision denying defendant’s section 1170.95 petition without
issuing an order to show cause or holding a hearing, ruling that
defendant had failed to make a prima facie case for section
1170.95 relief. The court stated that defendant “was convicted of
one count of First Degree Murder under a Felony Murder Rule
theory. . . . [Defendant] was not the actual killer.” (See People v.
Estrada, supra, 38 Cal.App.4th at p. 1064 [defendant “was
charged with and tried for first degree felony murder based on his
participation in the burglary and robbery of [the] victim . . . ,
which resulted in [the victim’s] death”]; People v. Estrada, supra,
11 Cal.4th at p. 572 [“At trial, evidence was introduced that
defendant was not the actual killer”].)
The trial court noted that defendant’s jury had been
instructed with that part of CALJIC No. 8.80.1—the special
circumstance instruction—that concerns accomplice liability.
4 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
5 Brady v. Maryland (1963) 373 U.S. 83.
4
According to the court, the jury was instructed that “a major
participant who acted with reckless indifference for human life
could be held liable for [a] death even if not the actual killer.”6
Both this court and the Supreme Court had affirmed the jury’s
verdict, holding that the jury instructions properly defined
“reckless indifference to human life.”
After the Supreme Court’s opinion in this case, the trial
court noted, the Supreme Court decided People v. Banks (2015)
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522
(Clark) which provided factors to consider in determining
whether a defendant, who was not the actual killer, was a major
participant in a special circumstance felony murder case and, if
so, whether the defendant acted with reckless indifference to
human life. The court then reviewed the evidence from
defendant’s trial to determine whether defendant was a major
6 Specifically, “the trial court gave the portion of CALJIC No.
8.80.1 that tracks the language of section 190.2, subdivisions (c)
and (d), pertaining to accomplice liability. The jury was charged
as follows: ‘If you find that a defendant was not the actual killer
of a human being, or if you are unable to decide whether the
defendant was the actual killer or an aider and abettor, you
cannot find the special circumstance to be true as to that
defendant unless you are satisfied beyond a reasonable doubt
that such defendant with the intent to kill aided, abetted,
counseled, commanded, induced, solicited, requested or assisted
any actor in the commission of the murder in the first degree, or
with reckless indifference to human life and as a major
participant aided, abetted, counseled, commanded, induced,
solicited, requested or assisted in the commission of the crime of
. . . section 190, subdivision (a), subdivision (17), which resulted
in the death of a human being, namely, [the victim].’ (Italics
added.)” (People v. Estrada, supra, 11 Cal.4th at p. 573.)
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participant who acted with reckless indifference to human life as
provided in Banks and Clark, and thus was ineligible for section
1170.95 relief. It found:
“The evidence presented in this case established that
[defendant] and his co-defendant spoke to the victim outside of
his home. After the victim went inside, they sat in a moving van
for approximately ten minutes. The reasonable inference is that
they were planning the burglary/robbery of the victim. Both
perpetrators then entered the home together, by jumping the
fence and entering the home through the front door. Immediately,
crashing noises were heard from the interior of the home for
approximately 10-minutes.
“The uncontroverted evidence is that both perpetrators
knew that the house was occupied by the victim at the time they
jumped the fence and entered the home. Knowingly trespassing
and entering an occupied home without permission, posed a
particular danger that both perpetrators must have been aware
of. It is certainly foreseeable that the person occupying the home
will defend their home as best they can, including but not limited
to, the use of deadly force.
“Based on the evidence presented at trial, [defendant] was
present in the home when the victim and the co-defendant were
fighting. The victim indicated that two individuals were involved
in the attack. The neighbor testified that the commotion inside
the home lasted for approximately ten minutes. Presence at the
scene of a murder is a particularly important aspect of the
reckless indifference inquiry. (Clark, supra, 63 Cal.4th at
[p.] 619.) The noises coming from the house w[ere] so loud that
they could be heard by the neighbor. The reasonable inference is,
at the very least, that [defendant] knew that the victim was
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fighting for his life. He was therefore present when the co-
defendant stabbed the victim multiple times. [Defendant] did
nothing to stop the attack or to render aid to the critically injured
victim. He did not call for help. Instead, after the victim was
incapacitated, he and his co-defendant took his TV, placed it on a
fence outside and returned to the residence to continue taking the
victim’s possessions.
“When the police arrived, [defendant] did not immediately
surrender, or indicate to the police that there was a critically
injured man inside the home who required medical assistance.
Instead, in the presence of the police, he attempted to remove a
rifle from [its] case, thereby creating another life-threatening
situation. He then ran back inside the home, causing additional
delays in providing aid to the victim.”
The trial court found that defendant’s conduct satisfied the
Banks and Clark factors. That is, defendant was a major
participant who acted with reckless indifference for human life.
Accordingly, he could be convicted of murder under existing law
and therefore had failed to make a prima facie case for section
1170.95 relief.
The trial court also “formally” denied defendant’s motion
for pretrial discovery. It stated that it earlier denied the motion
without prejudice because the motion was premature as it had
not yet decided whether defendant’s section 1170.95 petition
made a prima facie case for relief. It explained that if it had
found that defendant made a prima facie case for section 1170.95
relief and if it had issued an order to show cause and conducted
an evidentiary hearing, then defendant could have renewed his
discovery motion. Without an order to show cause or an
evidentiary hearing, defendant’s discovery motion was moot.
7
The trial court rejected defendant’s argument that his
discovery motion could be useful to the court’s prima facie case
determination. It reasoned that the information defendant
sought had little or no bearing on whether he was a major
participant who acted with reckless indifference to human life.
The information he sought was only relevant to whether
defendant was the actual killer and the jury determined that he
was not.
III. DISCUSSION
A. Senate Bill 1437’s Amendments to Sections 188 and 189
and Addition of Section 1170.95
“Through section 1170.95, Senate Bill 1437 created a
petitioning process by which a defendant convicted of murder
under a felony murder theory of liability [or the natural and
probable consequences doctrine] could petition to have his
conviction vacated and be resentenced. Section 1170.95 initially
requires a court to determine whether a petitioner has made a
prima facie showing that he or she falls within the provisions of
the statute as set forth in subdivision (a), including that ‘(1) [a]
complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine[,] [¶] (2) [t]he petitioner was convicted of
first degree or second degree murder following a trial or accepted
a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder[, and] [¶]
(3) [t]he petitioner could not be convicted of first or second degree
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murder because of changes to [s]ection[s] 188 or 189 made
effective January 1, 2019.’ (See § 1170.95, subd. (c); People v.
Verdugo (2020) 44 Cal.App.5th 320, 327 . . ., review granted
Mar. 18, 2020, [S260493 (Verdugo)].) If it is clear from the record
of conviction that the petitioner cannot establish eligibility as a
matter of law, the trial court may deny the petition. (Verdugo,
[supra, 44 Cal.App.5th] at p. 330.) If, however, a determination
of eligibility requires an assessment of the evidence concerning
the commission of the petitioner’s offense, the trial court must
appoint counsel and permit the filing of the submissions
contemplated by section 1170.95. (Verdugo, [supra, 44
Cal.App.5th] at p. 332; [People v.] Lewis [(2020)] 43 Cal.App.5th
[1128,] 1140, rev[iew] granted [Mar. 18, 2020, S260598].)”
(People v. Smith (2020) 49 Cal.App.5th 85, 92, review granted
July 22, 2020, S262835, fn. omitted (Smith).) “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.” (§ 1170.95, subd.
(c).)
B. Analysis
Defendant contends the trial court erred in denying his
section 1170.95 petition without issuing an order to show cause
and holding a hearing. Instead, the court improperly engaged in
factfinding in ruling that he did not make a prima facie case for
section 1170.95 relief.
Because the record affirmatively demonstrates that
defendant was tried on a felony murder theory of guilt, the record
shows that defendant could have been convicted under a theory of
murder that is no longer viable under the revisions to sections
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188 and 189. Accordingly, the trial court should have issued an
order to show cause and erred when it prematurely engaged in
factfinding to determine whether defendant made a prima facie
case for section 1170.95 relief. (Verdugo, supra, 44 Cal.App.5th
at p. 329 [when evaluating a section 1170.95 petitioner’s
eligibility under subdivision (c), the court must make “all factual
inferences in favor of the petitioner”].) Therefore, the order
denying defendant’s petition must be reversed and the matter
remanded to the trial court with directions to issue an order to
show cause and hold a hearing under section 1170.95, subdivision
(d).
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IV. DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed and the matter is remanded to the trial court with
directions to issue an order to show cause and hold a hearing
under section 1170.95, subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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