Filed 6/22/21 P. v. Ruiz 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE, B305229
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA190220)
v.
RICARDO RUIZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, George Lomeli, Judge. Reversed and remanded.
Danalynn Pritz, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Senior Assistant
Attorney General, A. Natasha Cortina, Supervising Deputy
Attorney General, and Alan L. Amann, Deputy Attorney General,
for Plaintiff and Respondent.
Defendant and appellant Ricardo Ruiz (defendant) appeals
from an order denying his petition for resentencing pursuant to
Penal Code section 1170.95.1 The Attorney General concedes a
remand for further section 1170.95 proceedings in the trial court
is required because the trial court should have appointed counsel
for defendant before ruling on his petition. We will reverse and
remand for that reason.
I. BACKGROUND
Defendant participated with four others in the fatal
jailhouse beating of victim Mauricio Avalos (Avalos). (People v.
Sandoval et al. (Sept. 19, 2005, B176199 [nonpub. opn.]
(Sandoval).) The cause of death was blunt force trauma caused
by contact with a hard surface or object. (Ibid.)
At defendant’s trial on a charge of murder, the jury was
instructed on the natural and probable consequences doctrine,
specifically, that they could find defendant guilty of murder if it
were the natural and probable consequence of an assault.
(Sandoval, supra, B176199.) The Attorney General
acknowledges the prosecutor, at least in part, relied on the
natural and probable consequences theory in closing argument.
The jury found defendant guilty of second degree murder and the
trial court sentenced him to 15 years to life in prison. (Ibid.)
This court affirmed the judgment (with minor corrections to the
abstract thereof) on direct appeal. (Ibid.)
In November 2019, defendant filed a section 1170.95
petition asking the trial court to vacate his murder conviction
1
Undesignated statutory references that follow are to the
Penal Code.
2
because the jury was permitted to find him guilty on a natural
and probable consequences theory, which meant, in the language
of section 1170.95, that he “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); see also
People v. Gentile (2020) 10 Cal.5th 830, 848 [Senate Bill No.
1437’s amendments to section 188 “eliminate[ ] natural and
probable consequences liability for murder regardless of
degree”].) Defendant’s petition asked the court to appoint counsel
for him and was accompanied by a declaration from defendant
professing, among other things, a lack of knowledge that anyone
intended to kill Avalos.
The trial court denied defendant’s petition without first
appointing counsel for defendant. Citing this court’s prior
opinion in Sandoval, supra, B176199 and recapitulating the facts
of Avalos’s beating, the trial court believed “it is clear from the
overall evidence that [defendant] with an intent to kill aided and
abetted the murder of [Avalos] and/or was a major participant
who acted with reckless indifference to human life.”2
II. DISCUSSION
Defendant argues the trial court wrongly denied his section
1170.95 petition without first appointing counsel to represent
him because he made the requisite statutory prima facie showing
and there is nothing that indicates he is ineligible for relief as a
matter of law. The Attorney General agrees, conceding it is not
2
The latter reckless indifference finding made by the trial
court is irrelevant; defendant was not prosecuted on a theory of
felony murder. (See generally § 189, subd. (e).)
3
evident as a matter of law from the record of conviction that
defendant was convicted on a malice theory of murder rather
than a natural and probable consequences theory of aiding and
abetting.
The jury was instructed on natural and probable
consequences murder, the prosecution apparently argued that
theory to the jury, and the record does not foreclose the
possibility that the second degree murder verdict rests on a
natural and probable consequences theory of aiding and abetting.
We therefore agree with the parties that reversal and a remand
for further proceedings is required.3 (§ 1170.95, subd. (c) [“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”];
People v. Verdugo (2020) 44 Cal.App.5th 320, 330, review granted
Mar. 18, 2020, S260493 [“Because the court is only evaluating
whether there is a prima facie showing the petitioner falls within
the provisions of the statute, however, if the petitioner’s
ineligibility for resentencing under section 1170.95 is not
established as a matter of law by the record of conviction, the
court must direct the prosecutor to file a response to the petition,
3
Defendant’s reply brief argues we should remand to a
particular judge. We decline, both because the point raised in
reply is raised too late and because the question of who the
assigned judge will be on remand is not ripe for appellate review.
4
permit the petitioner (through appointed counsel if requested) to
file a reply and then determine, with the benefit of the parties’
briefing and analysis, whether the petitioner has made a prima
facie showing he or she is entitled to relief”]; see also People v.
Smith (2020) 49 Cal.App.5th 85, 92, review granted Jul. 22, 2020,
S262835 [“If . . . 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”].)
DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed and the matter is remanded with directions to appoint
counsel for defendant and to thereafter proceed consistent with
section 1170.95, subdivisions (c) through (e).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
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