People v. Saesee CA5

Filed 6/16/21 P. v. Saesee CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F080018
Plaintiff and Respondent,
(Super. Ct. No. VCF164116A)
v.

JOHN AIPIO SAESEE, OPINION
Defendant and Appellant.

THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
Kyle Gee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

* Before Hill, P.J., Detjen, J. and Peña, J.
 INTRODUCTION
In 2007, a jury convicted petitioner John Aipio Saesee of first degree murder (Pen.
Code,1 § 187, subd. (a)), with the special circumstances that the murder involved the
discharge of a firearm from a motor vehicle (§ 190.2, subd. (a)(21)) and that petitioner
intentionally killed the victim while an active participant in a criminal street gang
(§ 190.2, subd. (a)(22)).2 For this offense, petitioner was sentenced to a term of life
without the possibility of parole.
In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95.
The court summarily denied the petition on the ground that petitioner was the shooter in
the murder, a disqualifying factor pursuant to section 1170.95, subdivision (a)(3).
Petitioner appeals from the court’s denial of his petition. He argues that the record
before the court does not establish that petitioner was the actual shooter. The People do
not address this contention and do not assert that petitioner was the actual shooter, but
instead assert that petitioner is ineligible for relief because the jury’s special circumstance
findings establish that petitioner intended to kill the victim, which also is a statutorily
disqualifying factor pursuant to section 1170.95, subdivision (a)(3). In response,
petitioner contends the record is inadequate to establish that the jury found he had the
intent to kill. He therefore contends the matter should be remanded for the court to
appoint counsel and render a more informed ruling.
We conclude the jury’s special circumstance findings establish that petitioner is
ineligible for relief as a matter of law. Accordingly, any error in the court’s
determination that petitioner was the actual shooter is harmless, as is any error by the

1 Undesignated statutory references are to the Penal Code.
2 Petitioner was convicted of additional offenses and enhancements, as described
below.

2.
court in failing to appoint counsel or afford petitioner the other procedures outlined in
section 1170.95, subdivision (c). Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY3
We previously summarized the facts underlying petitioner’s offenses as follows:

“On May 8, 2006, around 11:30 p.m., Saesee was driving near the
residence of 15-year-old C. She was outside, wearing a red shirt, and a
conversation took place between Saesee and her regarding her gang
affiliation. C. denied any affiliation, and Saesee told her she was in ‘O.T.
territory.’ ‘O.T.’ is gang slang for the criminal street gang Oriental Troop
(hereafter O.T.), which identifies with the color blue. C., who had a friend
who had suffered at the hands of that gang, responded ‘Fuck O.T.’ Saesee
got out of his car and tried to strike at C. He also showed her a gun and
asked her if she lived at that residence. He then said, ‘Watch bitch, when I
fucking come back.’ Saesee then drove away.

“C. became concerned and encouraged her family members to go
inside the house. Shortly thereafter, [Natividad] Viscarra, C.’s sister, was
standing near the curb talking to several friends in a vehicle. Viscarra had
her hair in a ponytail, in a style similar to C.

“After Saesee left the area, he met with several of his gang-affiliated
friends. He told them what had happened, they got in his vehicle, and he
drove them back to C.’s residence. He drove by the residence, went to the
end of the street and made a U-turn. He turned his car’s lights off and
drove past C.’s residence slowly. As he drove past, two shots were fired
from his car, one of which struck Viscarra in the heart. She later died at the
hospital.

“Officers responded quickly to Saesee’s neighborhood. He was
located and arrested. Officers found a gun nearby that matched the
description provided by witnesses.”4 (Saesee, supra, F054288.)

3 Our factual summary is taken from our decision in petitioner’s direct appeal,
which was before the trial court and is relied on by both parties in this appeal.
4 This portion of our prior factual summary was taken from the report and
recommendation of the probation officer. (People v. Saesee (Feb. 18, 2009, F054288)
[nonpub. opn.] (Saesee).)

3.
 Later in our opinion, we summarized the following witness testimony relating to
the offenses:

“Here, A.S. went to see her friend C. at the residence on Turner
Street on May 8, 2006. At about 11:40 p.m., C. left her house and went to
see a friend who lived a few houses away. C. was dressed in a red shirt.
When C. was outside, A.S. heard her say, ‘Don’t disrespect me.’ A.S. went
outside to see what was happening and heard Saesee ask C. what gang she
‘claimed.’ A.S. heard C. tell Saesee she was not a gang member. Saesee
said he was part of the O.T., and that the Turner Street neighborhood was
O.T. land.

“C. told Saesee, ‘fuck OT’s.’ A.S. was standing next to C. when C.
made this statement. Saesee became angry, jumped out of his car, and
raised his arm as though he was going to hit C. A.S. jumped in front of
Saesee to break up the encounter. Saesee remained angry and said, ‘fuck
Nortenas, fuck northerners.’ A.S. watched Saesee reach for his right hip
and saw a gun on his person. He pulled the gun out from his hip area. A.S.
described the weapon as dark with a white handle and thought it might have
been a .45-caliber handgun. Saesee said he wanted to shoot both C. and
A.S.

“Leo Loya watched the encounter from his nearby house. C. yelled
for Loya to come over and Loya pushed Saesee into his vehicle. Saesee
kept saying, ‘No one is going to check me. You guys are just Nortena
bitches, busters.’ According to A.S., Saesee also said, ‘I ought to kill you
guys, off you guys.’ Once Saesee was back in his car, C. and A.S. walked
toward a neighbor’s house. Loya got into the car with Saesee and Saesee
drove over to where C. and A.S. were standing. Saesee asked C. where she
lived and, against A.S.’s advice, C. told him. A.S. heard Saesee say he was
going to come back and kill the two girls. C. heard Saesee say, ‘Watch,
bitch. Watch when I fucking come back.’ C. interpreted that to mean he
was coming back to shoot her. After making the threat, Saesee drove away.

Raen See is Saesee’s cousin and a codefendant in the case. See
testified for the People at Saesee’s trial. See said that on May 8, 2006, he
was at some apartments on northwest First Street with Saesee and Loya.
Saesee and Loya left the apartment building and returned a few minutes
later. Saesee was angry when he returned because someone had said, ‘fuck
OT’s.’ See said Saesee told four of his male friends to get in the car.
Saesee was still in the driver’s seat and they departed. They returned 10
minutes later and Saesee was still seated in the driver’s seat. The occupants

4.
 of the car appeared nervous. One of the occupants handed See a revolver
and some bullets and said there was something wrong with the firearm. See
took the partially loaded firearm into his apartment and began to fix it.
Police arrived about five minutes later and See was in possession of the gun
and bullets.” (Saesee, supra, F054288.)
On October 16, 2007, a jury convicted petitioner of first degree murder (§ 187,
subd. (a); count 1), shooting from a motor vehicle (former § 12034, subd. (c); count 2),
and possession of a firearm by a felon (former § 12021, subd. (a)(1); count 3). As to
count 1, the jury found true the allegations that the murder involved the discharge of a
firearm from a motor vehicle (§ 190.2, subd. (a)(21)); petitioner intentionally killed the
victim while an active participant in a criminal street gang (§ 190.2, subd. (a)(22)); a
principal intentionally discharged a firearm in the commission of the offense, causing
great bodily injury (§ 12022.53, subds. (c), (d), (e)(1)); the offense was committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)); petitioner had served a prior prison
term (§ 667.5, subd. (b)); and petitioner had sustained a prior felony conviction (§§ 667,
subd. (a)(1); 1170.12). As to count 2, the jury found true the allegations that a principal
intentionally discharged a firearm in the commission of the offense, causing great bodily
injury (§ 12022.53, subds. (d), (e)(1)); the offense was committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)); petitioner had served a prior prison term
(§ 667.5, subd. (b)); and petitioner had sustained a prior felony conviction (§§ 667,
subd. (a)(1); 1170.12). As to count 3, the jury found true the allegations that the offense
was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)),
petitioner had served a prior prison term (§ 667.5, subd. (b)); and petitioner had sustained
a prior felony conviction (§ 1170.12).
On count 1, petitioner was sentenced to a term of life without the possibility of
parole, plus a term of 25 years to life for the firearm enhancement. On count 3, petitioner
was sentenced to a consecutive term of four years, plus a three-year term for the gang

5.
allegation and a one-year term for the prior prison term enhancement. Sentence on the
remaining count and enhancements was imposed and stayed pursuant to section 654.
On August 6, 2019, petitioner filed a petition for resentencing pursuant to section
1170.95. In the form petition, petitioner stated that a complaint, information, or
indictment was filed against him that allowed him to be prosecuted under a theory of
felony murder; he was convicted of first or second degree murder at trial; and he was not
the actual killer, did not act with an intent to kill, and was not a major participant in the
underlying felony or did not act with reckless indifference to human life in the course of
the crime.
On August 14, 2019, the court summarily denied the petition with the statement,
“DEFENDANT SHOOTER[.]”
This timely appeal followed.
DISCUSSION
I. Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Section 1170.95
“ ‘Effective January 1, 2019, Senate Bill [No.] 1437 amended murder liability
under the felony-murder and natural and probable consequences theories.’ ” (People v.
Daniel (2020) 57 Cal.App.5th 666, 672, review granted Feb. 24, 2021, S266336
(Daniel).) The bill accomplished this task by adding three separate provisions to the
Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend
the natural and probable consequences doctrine, “ ‘[t]he bill redefined malice under
section 188 to require that the principal acted with malice aforethought. Now, “[m]alice
shall not be imputed to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)’ ” (Daniel, at p. 672; accord, Gentile, at pp. 842-843.) Second, to
amend the felony-murder rule, the bill added section 189, subdivision (e):

“A participant in the perpetration or attempted perpetration of [qualifying
felonies] in which a death occurs is liable for murder only if one of the
following is proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill, aided, abetted,

6.
 counseled, commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3) The person
was a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section
190.2.”5 (§ 189, subd. (e); accord, Gentile, at p. 842.)
Finally, the bill “added section 1170.95 to provide a procedure for those convicted of
felony murder or murder under the natural and probable consequences doctrine to seek
relief under the two ameliorative provisions above.” (Gentile, at p. 843.)
“Section 1170.95 lays out a process for a person convicted of felony murder or
murder under a natural and probable consequences theory to seek vacatur of his or her
conviction and resentencing. First, the person must file a petition with the trial court that
sentenced the petitioner declaring, among other things, that the petitioner ‘could not be
convicted of first or second degree murder because of changes to Section 188 or 189.’
(§ 1170.95, subd. (a)(3); see § 1170.95, subd. (b)(1)(A).) Then, the trial court must
‘review the petition and determine if the petitioner has made a prima facie showing that
the petitioner falls within the provisions of th[e] section.’ (§ 1170.95, subd. (c).) If so,
the trial court must issue an order to show cause and hold a hearing to determine whether
to vacate the murder conviction and to resentence the petitioner on any remaining counts.
(§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.’ (§ 1170.95,
subd. (d)(3).) ‘The prosecutor and the petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.’ (Ibid.)” (Gentile,
supra, 10 Cal.5th at p. 853.)
“Since Senate Bill [No.] 1437 was adopted and its mechanism for retroactive
application has come into play through the filing of section 1170.95 petitions, many
questions have arisen about that process and percolated up through appeals from

5 Additionally, section 189 was amended to allow for felony-murder liability where
the victim is a peace officer. (§ 189, subd. (f); accord, Daniel, supra, 57 Cal.App.5th at
p. 672, review granted.)

7.
resentencing decisions.” (People v. Duchine (2021) 60 Cal.App.5th 798, 811, fn.
omitted.) Those questions pertain primarily to section 1170.95, subdivision (c)
(hereinafter sometimes referred to as “subdivision (c)”), which “addresses the procedure
by which a trial court determines whether the petitioner is entitled to an evidentiary
hearing.” (People v. Cooper (2020) 54 Cal.App.5th 106, 114, review granted Nov. 10,
2020, S264684 (Cooper).) Section 1170.95, subdivision (c) provides in full:

“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[’s] 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.”
Courts of Appeal are divided on several questions arising under subdivision (c).
Relevant here, the Courts of Appeal are split regarding when the right to counsel arises
under subdivision (c). Our Supreme Court has granted review to decide this question.
(See People v. Lewis (2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020,
S260598 (Lewis).) In the meantime, a court has held that the right to counsel attaches
immediately upon the filing of a facially sufficient petition that includes all the
information required under section 1170.95, subdivision (b). (Daniel, supra, 57
Cal.App.5th at p. 673, review granted; Cooper, supra, 54 Cal.App.5th at pp. 109, 114,
review granted.) That court construed the first sentence of subdivision (c) to state a
general rule, with the rest of the subdivision establishing a process for complying with
that rule: “ ‘Appoint counsel, if requested. Wait for the prosecutor’s required response
and the petitioner’s optional reply. If the petitioner makes a prima facie showing, issue
an order to show cause.’ ” (Cooper, at p. 115.)

8.
 Other courts have read the two references to a “prima facie showing” in the first
and fifth sentences of subdivision (c) as requiring two different prima facie reviews – one
to determine whether the petitioner “falls within the provisions” of the statute and one to
determine whether the petitioner is “entitled to relief” – with each review to occur at a
different chronological point in time. (Lewis, supra, 43 Cal.App.5th at p. 1140, review
granted; see People v. Verdugo (2020) 44 Cal.App.5th 320, 328-333, review granted
Mar. 18, 2020, S260493 (Verdugo).) Under this reading of the statute, courts have
concluded that a petitioner is entitled to counsel (as well as the other procedures provided
for under subd. (c)) only after the trial court determines the petitioner has made the
threshold showing required to satisfy the first prima facie review. (Lewis, at p. 1140;
Verdugo, at p. 332.)
Courts of Appeal also are divided on the question of whether a trial court may
look beyond a facially sufficient petition to determine whether a defendant has made a
prima facie showing that he or she falls within the provisions of the statute. Our Supreme
Court also granted review to decide this question in Lewis, supra, 43 Cal.App.5th 1128.
In the meantime, some courts have held that a trial court may examine the petition, as
well as the court’s own files, the record of conviction, or an appellate court opinion from
the petitioner’s direct appeal. (Lewis, at p. 1138, review granted; see Verdugo, supra, 44
Cal.App.5th at p. 333, review granted.) Another court has held that a trial court may not
rely on the record of conviction to deny a facially sufficient petition, and instead may
only rely on the record of conviction to deny a petition “after deeming it facially
sufficient, appointing counsel, and receiving briefing from the parties.” (Daniel, supra,
57 Cal.App.5th at p. 677, review granted; see Cooper, supra, 54 Cal.App.5th at pp. 125-
126, review granted.)
II. Petitioner is Ineligible for Resentencing
Petitioner contends the trial court erroneously denied his petition because the
record does not establish that he was the actual shooter. However, even if petitioner was

9.
not the actual shooter, the jury’s special circumstance findings establish that he intended
to kill the victim. He is ineligible for resentencing on this basis. Even if the court erred
in its determination, petitioner was not prejudiced, and he therefore is not entitled to
reversal.
To be eligible for relief pursuant to section 1170.95, petitioner must not have been
the actual killer, must not have acted with the intent to kill, and must not have been a
major participant in the underlying felony who acted with reckless indifference to human
life. (§§ 189, subd. (e), 1170.95, subd. (a)(3); see Gentile, supra, 10 Cal.5th at p. 842.)
Here, the jury found true the special circumstances pursuant to section 190.2, subdivision
(a)(21) and (a)(22), which impose a sentence of death or life without the possibility of
parole for, respectively, a murder involving the discharge of a firearm from a motor
vehicle and the defendant’s active participation in a criminal street gang. To make such
findings, the jury was required to find that petitioner intended to kill the victim. (§ 190.2,
subds. (a)(21), (a)(22), (c).) The jury therefore made the findings necessary to sustain a
murder conviction under section 189, as amended by Senate Bill No. 1437 (2017-2018
Reg. Sess.).6 Petitioner is therefore ineligible for resentencing as a matter of law, and he
was not prejudiced by the trial court’s summary denial of his petition, even if that denial

6 Petitioner does not argue the trial court erred in relying on the record of conviction
to summarily deny the petition. However, we acknowledge the issue of whether the trial
court may consider the record of conviction in determining whether a petitioner has made
a prima facie showing of eligibility for relief under section 1170.95 is currently pending
before our Supreme Court. (Lewis, supra, 43 Cal.App.5th 1128, review granted.) In the
meantime, however, the Courts of Appeal appear to be in an agreement that, at the very
least, the trial court may rely on the record of conviction to “deny a petition after
deeming it facially sufficient, appointing counsel, and receiving briefing from the parties”
(Daniel, supra, 57 Cal.App.5th at p. 677, review granted), particularly where the court’s
review of that record is “limited to 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 . . . .” (People v. Drayton (2020) 47 Cal.App.5th 965, 980.) We
therefore consider the record of conviction in determining whether petitioner was
prejudiced by the court’s summary denial of his petition.

10.
was based on an erroneous ground. (See Daniel, supra, 57 Cal.App.5th at p. 676, review
granted [the petitioner bears the burden of showing it is reasonably probable that, absent
error, his or her petition would not have been summarily denied without an evidentiary
hearing]; see also People v. Watson (1956) 46 Cal.2d 818, 836.)
Nonetheless, petitioner argues the special circumstance findings are insufficient to
render him ineligible for resentencing. He first argues the special circumstance findings
at issue here do not require that the defendant intended to kill the victim, only that
someone intended to kill the victim. We disagree. Section 190.2, subdivision (a)(21)
provides:

“The murder was intentional and perpetrated by means of discharging a
firearm from a motor vehicle, intentionally at another person or persons
outside the vehicle with the intent to inflict death. For purposes of this
paragraph, ‘motor vehicle’ means any vehicle as defined in Section 415 of
the Vehicle Code.”
Section 190.2, subdivision (a)(22) provides:

“The defendant intentionally killed the victim while the defendant was an
active participant in a criminal street gang, as defined in subdivision (f) of
Section 186.22, and the murder was carried out to further the activities of
the criminal street gang.”
Where the defendant is not the actual killer, these special circumstances apply
only if the defendant, “with the intent to kill, aids, abets, counsels, commands, induces,
solicits, requests, or assists any actor in the commission of murder in the first degree.”
(§ 190.2, subd. (c); accord, People v. Fayed (2020) 9 Cal.5th 147, 201-202 [considering
murder for financial gain special circumstance pursuant to § 190.2, subd. (a)(1)].) When
read together, these provisions make clear that only “ ‘one who intentionally aids or
encourages a person in the deliberate killing of another,’ ” in the manner or for the
reasons described by the statute, is subject to the special circumstance punishment.
(Fayed, at p. 202; accord, People v. Allison (2020) 55 Cal.App.5th 449, 460 (Allison).)

11.
We therefore reject petitioner’s argument that the special circumstances did not require
the jury to find he intended to kill the victim.
Petitioner additionally argues we cannot determine that the jury actually found he
had the intent to kill without knowing how the jury was instructed or how the case was
argued. Again, we disagree. “If these kinds of findings did not bar defendants from
relief under section 1170.95, it would be unclear how any prior factual findings could
preclude relief under section 1170.95.” (Allison, supra, 55 Cal.App.5th at p. 460.)
Moreover, we do know how the jury was instructed in this case, as the jury instructions
on both special circumstances were quoted in their entirety in our opinion in petitioner’s
direct appeal. (Saesee, supra, F054288.) There, we stated:

“The trial court also instructed in CALCRIM No. 735 (special
circumstances; discharge from vehicle) as follows:

“ ‘The defendant is charged with the special circumstance of
committing murder by shooting a firearm from a motor vehicle.

“ ‘To prove that this special circumstance is true, the People must
prove that, one, someone shot a firearm from a motor vehicle killing
Natividad Viscarra; two, the person who discharged the firearm
intentionally shot at a person who was outside the vehicle; three, at
the time of the shooting the defendant intended to kill.’

“The trial court further instructed in CALCRIM No. 736 (special
circumstances; killing by street gang) as follows:

“ ‘The defendant is charged with the special circumstance of
committing murder while an active participant in a criminal street
gang. To prove that this special circumstance is true, the People
must prove that the defendant intentionally killed Natividad
Viscarra; two, at the time of the killing, the defendant was an active
participant in a criminal street gang; three, the defendant knew what
members of the gang engaged in or have engaged in a pattern of
criminal gang activity; four, the murder was carried out to further the
activities of the criminal street gang.’ ” (Saesee, supra, F054288,
italics added.)
These instructions confirm that the jury found petitioner intended to kill the victim.

12.
 Because the jury found petitioner intended to kill the victim, petitioner is ineligible
for relief as a matter of law. (See Allison, supra, 55 Cal.App.5th at p. 460.) Thus, to the
extent the court erred in summarily denying the petition on the ground petitioner was the
shooter, the error was harmless. (See Daniel, supra, 57 Cal.App.5th at p. 677, review
granted; accord, People v. Law (2020) 48 Cal.App.5th 811, 826, review granted July 8,
2020, S262490 [any error in failing to appoint counsel was harmless because counsel
would not have been able to demonstrate petitioner was eligible for resentencing].)
DISPOSITION
The order is affirmed.

13.