Filed 6/18/21 P. v. Contreras CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A160042
v.
(Mendocino County
EDGAR FIDEL CONTRERAS, Super. Ct. No.
SCUKCRCR1583264)
Defendant and Appellant.
Edgar Fidel Contreras appeals from an order denying his petition
for resentencing under Penal Code section 1170.95.1 Contreras
contends—and the People agree—the trial court erred by summarily
denying his petition because he made a prima facie showing of
entitlement to relief and the record did not conclusively establish his
ineligibility as a matter of law. We accept the People’s concession,
reverse the order denying the petition, and remand for further
proceedings.
I. FACTS AND PROCEDURAL HISTORY
In March 2016, the prosecution filed an information charging
Contreras, Mario Godinez Gonzalez, and Isidro Lopez Bernal
1 All statutory references are to the Penal Code.
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(collectively, defendants) with one count of murder (§ 187), with a
special circumstance that the murder was committed during a robbery
(§ 190.2, subd. (a)(17)(D)), and with one count of second degree robbery
(§§ 211, 212.5, subd. (c)). The information also alleged defendants
personally and intentionally discharged firearms during the
commission of the crimes (§ 12022.53, subd. (c)), and that they
personally and intentionally discharged firearms proximately causing
the victim’s death (§ 12022.53, subd. (d)).
A. Preliminary Hearing, Plea, and Sentence
Defendants went to a marijuana grow site in Mendocino County
to steal marijuana plants.2 All three defendants were armed. As
Contreras and Gonzalez trimmed and bundled marijuana leaves, a
voice told them to stop. Then Contreras heard several gunshots.
Defendants fled, firing their guns as they ran. At the grow site, police
found the victim’s dead body. He had been shot three times. The
victim had a firearm in a holster at his side.
At the preliminary hearing, the prosecutor asserted “this is the
classic felony murder case” and explained: “we don’t know which shot
killed [the victim]. We know all defendants discharged a firearm and
we know from the felony murder [rule] they are all on the hook . . .
because they [were] in the attempted commission of a robbery. . . .
They shot and someone died and that’s the basis of the felony murder
rule.” The court agreed “this is a classic case of the felony murder rule”
and held Contreras to answer the charges.
2Our brief overview of the facts gleaned from evidence offered at
the preliminary hearing is not intended to be exhaustive.
2
In 2017, Contreras pled guilty to second degree murder (§§ 187,
190, subd. (a)) and admitted personally using a firearm in the
commission of the crime (§ 12022.53, subd. (b)). The parties agreed
Contreras would receive a prison sentence of 25 years to life, comprised
of 15 years to life for the murder conviction, plus a consecutive 10-year
term for the firearm enhancement.
At the change of plea hearing, the prosecutor noted “this is a
felony murder case. First-degree murder in the course of a robbery.”
When asked for the factual basis for the plea, the prosecutor responded
that Contreras “intentionally [and] willfully caused the death of [the
victim] by means of his association with others in [an] illegal
activity. . . . The facts . . . fall under the felony murder rule. He’s been
given an advantage. He is part of a group that was involved in a
marijuana rip-off that caused the death of [the victim]. In the course of
that, he was armed with, and personally used, a firearm[.]” The
prosecutor noted the facts did not “necessarily support a second-degree
murder, but it’s a discretionary decision I accepted when the offer was
made[.]”
The court sentenced Contreras to 25 years to life in state prison.
B. Resentencing Petition
In 2019, Contreras petitioned in propria persona for resentencing
under section 1170.95. Contreras alleged he was prosecuted under a
felony-murder theory; that he pled guilty to second degree murder
because he believed he could have been convicted at trial under the
felony-murder rule; and that he could no longer be convicted of murder
because of changes to sections 188 and 189. The court concluded
Contreras had stated a prima facie case for relief. It issued an order to
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show cause, appointed counsel for Contreras, and ordered briefing on
the merits of the petition.
In its briefing, the prosecution urged the court to withdraw the
order to show cause and summarily deny the petition. According to the
prosecution, the “theory of criminal liability” when Contreras entered
his guilty plea “was not that of felony-murder” but as “a principal or an
aider and abettor.” The prosecution reasoned that because it had not
pursued liability based on the felony-murder rule, Contreras was not
eligible for relief under section 1170.95.
Over Contreras’s opposition, the trial court agreed with the
prosecution, withdrew the order to show cause, and summarily denied
the petition. The court determined Contreras was ineligible for section
1170.95 relief because he was not convicted of felony murder.
According to the court, Contreras “was convicted by way of plea of
second degree murder based on the theory he was either a principal or
an aider and abettor.” As the court explained, the “factual basis for the
second-degree murder . . . was not felony-murder (i.e., murder by
someone else in the course of a robbery); rather it was murder as a
principal or aider and abettor.” Next, and relying on the charging
documents, and the preliminary hearing and change of plea transcripts,
the court concluded Contreras was not entitled to section 1170.95 relief
because he could have been convicted of second degree murder under
current law as a direct perpetrator, or an aider and abettor, had the
case proceeded to trial.
II. DISCUSSION
Numerous cases have detailed the changes that section 1170.95
made to California’s murder laws, making it unnecessary for us to do so
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here. (See, e.g., People v. Duchine (2021) 60 Cal.App.5th 798, 808–810
(Duchine).) Instead, we provide a brief overview of the statutory
procedure. As relevant here, a defendant may file a section 1170.95
petition where three conditions are met: (1) an information was filed
against the petitioner that allowed the prosecution to proceed under a
theory of felony murder; (2) the petitioner was convicted of first or
second degree murder following a trial, or accepted a plea offer in lieu
of a trial at which the petitioner could be convicted of first degree or
second degree murder; and (3) the petitioner 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)(1)–(3).)
When a defendant files such a petition, the trial court must
review it “and determine if the petitioner has made a prima facie
showing that the petitioner falls within the provisions of this section.”
(§ 1170.95, subd. (c).) If the petitioner has made such a showing, the
trial court must “issue an order to show cause.” (Ibid.) “The trial court
must then hold a hearing ‘to determine whether to vacate the murder
conviction and to recall the sentence and resentence the petitioner on
any remaining counts in the same manner as if the petitioner had not
. . . previously been . . . sentenced, provided that the new sentence, if
any, is not greater than the initial sentence.’ (§ 1170.95, subd. (d)(1).)”
(People v. Aleo (May 27, 2021, F080005) __Cal.App.5th__ [2021 Lexis
445, p. *8].) At the hearing, the prosecution has the burden “to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (§ 1170.95, subd. (d)(3).)
In performing a prima facie review under section 1170.95,
subdivision (c), the court must accept the allegations in the petition as
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true unless the record of conviction conclusively disproves those facts as
a matter of law. (Duchine, supra, 60 Cal.App.5th at pp. 812–816;
People v. Drayton (2020) 47 Cal.App.5th 965, 968.) As our colleagues
recently explained, the “time for weighing and balancing and making
findings on the ultimate issues arises at the evidentiary hearing stage
rather than the prima facie stage, at least where the record is not
dispositive on the factual issues. Thus, absent a record of conviction
that conclusively establishes that the petitioner engaged in the
requisite acts and had the requisite intent, the trial court should not
question his evidence. The court may . . . consider the record of
conviction at the prima facie stage, but may not evaluate the evidence,
make credibility findings adverse to the petitioner, engage in
factfinding or exercise discretion.” (Duchine, at p. 815.)
“The court may . . . consider the record of conviction at the prima
facie stage . . . only to determine ‘readily ascertainable facts,’ such as
the crime of conviction and findings on enhancements. Once the
petitioner has made a prima facie showing, true factfinding should be
reserved and exercised only after an order to show cause is issued and
the parties are permitted to supplement the record with new evidence,
including, if requested, through an evidentiary hearing.”3 (Duchine,
supra, 60 Cal.App.5th at p. 815; see also People v. DeHuff (2021) 63
Cal.App.5th 428, 438–442 (DeHuff).)
3 The California Supreme Court is considering whether a trial
court may consider the record of conviction in determining whether the
petitioner has made a prima facie showing of eligibility for relief under
section 1170.95. (People v. Lewis (2020) 43 Cal.App.5th 1128, review
granted March 18, 2020, S260598.)
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The parties agree Contreras made a prima facie showing of
eligibility for section 1170.95 relief by alleging an information was filed
against him that allowed the prosecution to proceed under a
felony-murder theory; that he pled guilty to second degree murder
because he believed he could have been convicted at trial under the
felony-murder rule; and that he could no longer be convicted of murder
because of changes to section 188 or 189. The parties also agree the
record does not conclusively establish Contreras is ineligible for relief
as a matter of law.
“[O]ur review of the record comports with the parties’
representations; that is, [Contreras] established a prima facie showing
he is entitled to relief and the record did not rebut his allegations as a
matter of law.” (People v. Aleo, supra, __Cal.App.5th__ [2021 Lexis 445,
p. *17].) At the preliminary hearing, the prosecution asserted—and the
trial court agreed—the case was the quintessential felony-murder case.
At the plea hearing, the prosecution again stated the case fell under the
felony-murder rule and acknowledged the facts did not “necessarily
support” a second-degree murder conviction. That the record may
contain some evidence supporting Contreras’s liability as a direct
perpetrator, aider and abettor, or a major participant who acted with
reckless disregard for human life does not “preclude [Contreras] from
relief as a matter of law” at the prima facie stage. (DeHuff, supra, 63
Cal.App.5th at p. 442 [court erred by “reviewing the record for
substantial evidence that [the defendant] could still be convicted under
a valid theory of murder” at prima facie stage].)
Because Contreras made a prima facie showing he is entitled to
relief and the record did not rebut his allegations as a matter of law,
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the court was required to issue an order to show cause and hold a
hearing at which the prosecution bears the burden of proving, beyond a
reasonable doubt, that Contreras is ineligible for resentencing. (People
v. Aleo, supra, __Cal.App.5th__ [2021 Lexis 445, p. *14–17]; DeHuff,
supra, 63 Cal.App.5th at p. 438 [agreeing with the People that
defendant made a prima facie showing of eligibility for relief and
remanding for evidentiary hearing]; Duchine, supra, 60 Cal.App.5th at
p. 816 [same].)
We express no opinion on the result the court should reach after
issuing an order to show cause and conducting a hearing under section
1170.95, subdivision (d).
III. DISPOSITION
The order denying Contreras’s section 1170.95 petition is
reversed. The case is remanded with directions to issue an order to
show cause and to hold a hearing at which the prosecution bears the
burden of proving, beyond a reasonable doubt, that Contreras is
ineligible for resentencing. (§ 1170.95, subd. (d); DeHuff, supra, 63
Cal.App.5th at p. 442.)
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NEEDHAM, Acting P.J.
We concur.
BURNS, J.
RODRIGUEZ, J. *
People v. Contreras / A160042
* Judge of the Superior Court of Alameda County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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