Filed 6/23/21 P. v. Sanford CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B305362
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA087610)
v.
ERIC YLMO SANFORD,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Connie R. Quinones, Judge. Reversed and
remanded with direction.
Emry J. Allen, 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, Charles S. Lee and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Eric Sanford was convicted, after
jury trial, of two counts of felony-murder. Another panel of this
court affirmed his conviction. (People v. Perez and Sanford
(May 7, 2010, B211015) [nonpub. opn.].) Nearly a decade later,
he filed a petition for resentencing under Penal Code section
1170.95.1 The trial court summarily denied the petition,
concluding that the facts set out in the appellate opinion
established defendant had been a major participant in the crime
and acted with reckless indifference to human life. Defendant
appeals, arguing that he is entitled to the issuance of an order to
show cause. Respondent agrees that the trial court erred, but
posits that the appropriate remedy is the appointment of counsel
and briefing on the issue of defendant’s entitlement to relief. We
agree with the Attorney General.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s murder convictions arose from an attempted
robbery at a gas station mini-mart, in which two clerks were shot
and killed.2 Defendant and Adam Loza had entered the mini-
mart to steal some beer; Julio Perez remained outside, keeping
the engine running in the getaway vehicle.
Defendant, Loza and Perez were charged, by amended
information, with two counts of murder (§ 187), with felony-
murder and multiple murder special circumstances (§ 190.2,
subds. (a)(3) & (a)(17)), and two counts of attempted robbery
1 All undesignated statutory references are to the Penal
Code.
2 Our discussion of the underlying facts is taken from the
appellate opinion affirming defendant’s conviction. On
defendant’s motion, we have taken judicial notice of the opinion.
2
(§§ 664/211). The charges reflected that the prosecution
apparently believed defendant was the actual killer. Multiple
personal use firearm enhancements were alleged against
defendant alone (§ 12022.53, subds. (b)-(d)). As to all three
defendants, it was alleged that a principal was armed with a
firearm (§ 12022, subd. (a)(1)).
Defendant and Perez, the getaway driver, were tried
together. Loza appears to have been tried separately.3
Defendant and Perez were convicted of both murders and both
attempted robberies. However, the jury found all of the personal
use firearm enhancements not true, finding true only that a
principal was armed. The jury also found the multiple murder
special circumstance not true, and was unable to reach a verdict
on the felony-murder special circumstance, which was dismissed
at sentencing. Defendant was sentenced to 50 years to life in
prison.
On January 2, 2019, defendant, representing himself, filed
a petition for resentencing under section 1170.95, alleging he had
been convicted of murder on a felony-murder theory, but that he
was not the actual killer, an aider and abettor with the intent to
kill, or a major participant who acted with reckless indifference
to human life. He requested the appointment of counsel.
The prosecution filed an opposition, largely arguing that
section 1170.95 was unconstitutional, but also contending, with
no factual support or argument, that defendant “intended to kill
3 Defendant attached to his section 1170.95 petition a copy of
the transcript of his sentencing hearing. At that hearing the
prosecutor represented that the felony-murder special
circumstance was found true as to Loza. The appellate opinion in
defendant’s case indicates that Loza was sentenced to life in
prison without the possibility of parole.
3
or was a major participant and acted with reckless indifference to
human life.”
Without appointing counsel for defendant or holding a
hearing, the trial court denied defendant’s petition. Based on the
trial court’s review of the facts stated in the appellate opinion,
the trial court concluded defendant was a major participant who
acted with reckless indifference to human life, and that he
therefore did “not qualify for resentencing.”
Defendant filed a timely notice of appeal.
DISCUSSION
On appeal, defendant contends, the prosecution concedes,
and we agree that the trial court erred in summarily denying his
petition for relief. Given the jury’s findings, the trial court could
not conclude that defendant was ineligible for relief as a matter
of law.
The only dispute on appeal is the procedure when the case
returns to the trial court – whether to remand for the
appointment of counsel and briefing, or an order to show cause
and a hearing at which the prosecution has the burden to
establish defendant’s ineligibility for relief beyond a reasonable
doubt. The statute provides that the court is to issue an order to
show cause and hold a hearing only after it receives and reviews
the parties’ briefing. (§ 1170.95, subd. (c); People v. Verdugo
(2020) 44 Cal.App.5th 320, 328, review granted Mar. 18, 2020,
S260493.)4
4 To the extent defendant relies on People v. Cooper (2020)
54 Cal.App.5th 106, 112, review granted Nov. 10, 2020, S264684,
to support a different procedure, we disagree. (See People v.
DeHuff (2021) 63 Cal.App.5th 428, ___ [277 Cal.Rptr.3d 710,
714], fn. omitted.)
4
Defendant has not been appointed counsel and whether
defendant is eligible for resentencing has not been briefed. We
therefore remand for the appointment of counsel and briefing on
whether the court should issue an OSC.5
DISPOSITION
The order denying defendant’s petition for resentencing
under section 1170.95 is reversed. The matter is remanded for
the court to appoint counsel and permit briefing under section
1170.95, subdivision (c).
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
5 As we remand for appointment of counsel, it is unnecessary
to address whether the denial of his petition without the
appointment of counsel was unconstitutional.
5