Filed 7/22/21 P. v. Kirkpatrick CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
THE PEOPLE, B302280
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA389227)
v.
AARON KIRKPATRICK,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robert Perry, Judge. Reversed and remanded
with directions.
Jennifer A. Mannix, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Amanda V. Lopez and Nima
Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________
Aaron Kirkpatrick (appellant), who was convicted of second
degree murder, appeals from an order denying his petition for
resentencing under Penal Code section 1170.95.1 On the merits
of the appeal,2 appellant contends, the Attorney General
concedes, and we agree the trial court erred in finding appellant
failed to make a prima facie showing he is eligible for
resentencing under section 1170.95. Accordingly, we reverse the
trial court’s order and remand the matter for further proceedings
under section 1170.95, beginning with the appointment of counsel
for appellant and briefing by the parties pursuant to section
1170.95, subdivision (c).
BACKGROUND
I. The Offense and the Trial3
On May 16, 2011, two men approached Kirk Torres, the
victim in this case, outside near a gas station. Torres was shot
eight times and killed. At the scene, police recovered shell
casings and bullets, which indicated two different handguns were
used to shoot Torres.
An information charged appellant and his brother, Keon
Kirkpatrick, with the murder of Torres. (§ 187, subd. (a).) The
information also alleged a principal personally and intentionally
discharged a handgun causing the victim’s death (§ 12022.53,
1 Further statutory references are to the Penal Code.
2The Attorney General argues the appeal is procedurally
improper. We address the argument below.
3 We take these facts from the appellate record in
appellant’s direct appeal from his conviction, case number
B256477. We granted appellant’s November 12, 2020 request
that we take judicial notice of that record.
2
subds. (d) & (e)(1)), and the murder was gang-related within the
meaning of section 186.22, subdivision (b)(1)(C).
At trial, the prosecution presented a theory that the
shooters approached Torres to rob him of his gold chain. As
pertinent here, the trial court instructed the jury on first degree
felony murder (based on a robbery), willful, deliberate, and
premeditated first degree murder, second degree murder, directly
aiding and abetting a murder, and aiding and abetting a robbery
with murder as the natural and probable consequence of the
commission of the robbery.
In closing argument, the prosecutor acknowledged there
was evidence indicating appellant drove Keon and two other men
to the crime scene and remained in the vehicle while Keon and
another man exited the vehicle, approached Torres, took his gold
chain, and killed him: “It is entirely possible [appellant] stayed
in that alley the whole time in the car and watched the scene
unfold.” Other evidence presented at trial indicated appellant
was one of the shooters.
The jury found appellant and Keon guilty of the second
degree murder of Torres (rejecting the felony murder theory,
which the prosecution presented as first degree murder only).
The jury also found the firearm and gang enhancement
allegations to be true. In May 2014, the trial court sentenced
appellant and Keon, each, to 40 years to life: 15 years to life for
second degree murder, plus 25 years to life for the firearm
enhancement.
Appellant and Keon appealed their convictions, contending
the gang expert improperly relied on hearsay evidence in forming
his opinion, and the trial court should have instructed the jury on
imperfect self-defense. They did not challenge the sufficiency of
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the evidence supporting their commission of the offense or raise
any issue with respect to the identity of the shooters. The brief
statement of the facts in our opinion rejecting their contentions
and affirming the convictions indicated both appellant and Keon
were shooters, as we summarized circumstances of the crime in
the light most favorable to the judgment. (People v. Kirkpatrick
(Nov. 12, 2015, B256477) [nonpub. opn.], p. 2.)
II. Appellant’s First Section 1170.95 Petition
On November 16, 2018, appellant, representing himself,
filed a form petition for resentencing under section 1170.95, a
statute which permits a person convicted of felony murder or
murder under a natural and probable consequences theory to
petition the court to have the murder conviction vacated and to
be resentenced, if the person could not be convicted of murder
today in light of amendments to sections 188 and 189. Senate
Bill No. 1437, which added section 1170.95 and amended sections
188 and 189, was enacted in 2018 “to amend the felony murder
rule and the natural and probable consequences doctrine, as it
relates to murder, to ensure that murder liability is not imposed
on a person who is not the actual killer, did not act with the
intent to kill, or was not a major participant in the underlying
felony who acted with reckless indifference to human life.”
(Stats. 2018, ch. 1015, § 1(f), p. 6674; §§ 188, subd. (a)(3), 189,
subd. (e).)4
In his form petition, appellant checked boxes stating, in
pertinent part, that he was convicted of second degree murder
under the natural and probable consequences doctrine and could
not now be convicted of murder because of changes to sections
4Appellant’s petition was premature, as section 1170.95 did
not become effective until January 1, 2019.
4
188 and 189, effective January 1, 2019.5 Appellant also checked
the box requesting the trial court appoint counsel to represent
him in connection with his petition.
On January 17, 2019, the trial court issued an order
(without a hearing), appointing counsel for appellant in
connection with his section 1170.95 petition and ordering the
district attorney’s office to file a response to the petition by March
11, 2019. On March 1, 2019, before any briefing by the parties
occurred, the trial court issued another order (without a hearing),
vacating its January 17, 2019 order appointing counsel for
appellant and stating: “The Court on its own motion has
reconsidered the petition and finds petitioner [appellant] has not
made a prima facie showing that he falls within § 1170.95.”
Explaining its reasoning, the court stated:
“On May 16, 2011, [appellant] and his brother Keon
Kirkpatrick attacked a rival gang member and shot him to death.
The victim was shot eight times by two different guns. After the
murder, defendant [appellant] told a girlfriend that he and his
brother did what they ‘had to do.’
“The jury [at appellant’s trial] was instructed on felony
murder and the natural and probable consequence theory of
liability. By its verdict, the jury rejected the felony murder
theory because a finding of felony murder would have supported
a finding of first degree murder. (The jury was not instructed on
second degree felony murder.) The evidence clearly established
5 In fact, appellant checked all boxes on the form petition,
indicating he was convicted of all theories of first and second
degree murder that are no longer viable today after amendment
of sections 188 and 189, although he was convicted of second
degree murder, not first degree murder.
5
Defendant [appellant] was one of two shooters and that he acted
with the intent to kill. The instruction on the natural and
probable consequence theory of responsibility was superfluous.
“As one of two actual killers in this case, [appellant] is
specifically exempted from sentencing relief under [section]
1170.95 and [section] 189(e)(1).”6
The court also denied appellant’s section 1170.95 petition
based on its conclusion Senate Bill No. 1437 and section 1170.95
are unconstitutional.
Appellant did not file a “notice of appeal,” challenging the
order denying his section 1170.95 petition. Instead, less than
three weeks after the denial, on March 19, 2019, as a self-
represented litigant, he filed a petition for writ of habeas corpus
in this court (the Court of Appeal), case number B296343,
challenging his murder conviction on two grounds: (1) the
prosecution’s gang expert improperly relied on hearsay evidence
and (2) he was entitled to relief under Senate Bill No. 1437
because his conviction was based on the natural and probable
consequences theory of liability, and not that he was an actual
shooter or directly aided and abetted the murder.7 He provided a
summary of the evidence presented at trial, indicating he was not
one of the men who exited the vehicle, approached Torres, and
shot him. Appellant did not state in the habeas petition that he
had filed a section 1170.95 motion in the trial court.
6The same judge who presided over appellant’s trial denied
appellant’s section 1170.95 petition.
7 We granted the Attorney General’s April 16, 2021 request
that we take judicial notice of appellant’s March 19, 2019 petition
for writ of habeas corpus.
6
After reviewing the reporter’s transcripts from appellant’s
trial, on April 5, 2019, we issued an order on his March 19, 2019
habeas petition, stating: “The petition is denied without
prejudice to petitioner’s filing a new petition in the superior
court, in accordance with and pursuant to Senate Bill No. 1437
and Penal Code section 1170.95. We note that the appellate
opinion in this case [in the direct appeal of his conviction] may
have conflated the roles and activities of the appellant and others
in the underlying crimes [citation], therefore any such petition
shall include citations to the trial transcripts in petitioner’s
discussion of the facts.” As set forth above, appellant and Keon
contended in the direct appeal (1) that the gang expert
improperly relied on hearsay evidence in forming his opinion, and
(2) that the trial court should have instructed the jury on
imperfect self-defense.
III. Appellant’s Second Section 1170.95 Petition
On June 16, 2019, appellant, representing himself, filed a
second form petition for resentencing under section 1170.95. He
again checked all boxes on the petition, including those stating he
was convicted of second degree murder under the natural and
probable consequences doctrine and could not now be convicted of
murder because of the changes to sections 188 and 189 referenced
above. He also again checked the box requesting the trial court
appoint counsel to represent him in connection with his petition.
The trial court did not appoint counsel to represent
appellant in connection with this second section 1170.95 petition.
On July 11, 2019, the court issued an order (without a hearing),
denying this petition on the same grounds it had denied
appellant’s first section 1170.95 petition, as summarized above.
The court also commented in its order that appellant had not
7
complied with this court’s April 5, 2019 order denying his March
19, 2019 habeas petition, as appellant did not include citations to
the trial transcripts in his second 1170.95 petition, as this court
instructed him to do.
Appellant did not file a “notice of appeal,” challenging the
order denying his second section 1170.95 petition. Instead, on
November 18, 2019, as a self-represented litigant, he filed
another petition for writ of habeas corpus in this court (the Court
of Appeal), challenging the trial court’s July 11, 2019 order
denying his second section 1170.95 petition. In summarizing the
procedural history of his section 1170.95 petitions in this habeas
petition, appellant characterized his prior, March 19, 2019
habeas petition as “an appeal” of the March 1, 2019 order
denying his first section 1170.95 petition.
On December 23, 2019, we issued an order deeming
appellant’s November 18, 2019 habeas petition “to be a motion for
leave to file a belated notice of appeal,” and granting the motion.
We did not specify in the order whether the belated notice of
appeal was from the trial court’s order denying appellant’s first
section 1170.95 petition or his second.
DISCUSSION
I. We Treat the Present Appeal as Being Taken From
the Order Denying Appellant’s First Section 1170.95
Petition
The Attorney General argues an appeal from the trial
court’s order denying appellant’s second 1170.95 petition is
procedurally barred under the doctrine of collateral estoppel. We
need not address this argument because we treat this appeal as
being taken from the order denying appellant’s first section
1170.95 petition.
8
Within the time for filing an appeal from the order denying
his first section 1170.95 petition, appellant, as a self-represented
litigant, filed a petition for writ of habeas corpus in this court,
challenging his conviction under section 1170.95. In a
subsequent habeas petition, he characterized this earlier habeas
petition as “an appeal” from the order denying his first section
1170.95 motion. We did not treat the earlier habeas petition as
an appeal because we were unaware appellant had filed the first
section 1170.95 petition, so we instructed appellant to file a
(second) 1170.95 petition in the trial court.
As set forth above, we did not specify in our December 23,
2019 order whether we deemed appellant’s current petition for
writ of habeas corpus to be a belated notice of appeal from the
trial court’s order denying his first section 1170.95 motion or his
second. Based on the procedural history of the case, as set forth
in appellant’s current habeas petition, filed on November 18,
2019, we deem this habeas petition to be a motion for leave to file
a belated notice of appeal from the trial court’s March 1, 2019
order denying appellant’s first section 1170.95 motion.
Appellant’s challenge to that order has not previously been heard
in this court.8
II. The Trial Court Erred in Concluding Appellant Did
Not Make a Prima Facie Showing He Falls Within the
Provisions of Section 1170.95
On the merits, appellant contends, the Attorney General
concedes, and we agree appellant made a prima facie showing he
is eligible for relief under section 1170.95, and the trial court
8 Appellant may not additionally challenge on appeal the
July 11, 2019 order denying his second 1170.95 petition, as that
petition was made and denied on the same grounds as his first.
9
erred in denying his petition for resentencing without appointing
counsel for him and allowing briefing by the parties under section
1170.95, subdivision (c).
Under section 1170.95, subdivision (a), “A person convicted
of felony murder or murder under a natural and probable
consequences theory may file a petition with the court that
sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining
counts when all of the following conditions apply: [¶] (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) The 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. [¶] (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.”
In amending section 188, Senate Bill No. 1437 added the
following provision: “Except as stated in subdivision (e) of
Section 189 [a provision not relevant here], in order to be
convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188, subd. (a)(3);
Stats. 2018, ch. 1015, § 2.)
A trial court that receives a petition for resentencing under
section 1170.95—which complies with the statutory requirements
regarding filing, service, and contents of the petition set forth in
subdivision (b), as appellant’s petition does—must follow these
10
steps: “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. 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.” (§ 1170.95, subd. (c).)
This appeal concerns the first sentence, or first step, of
section 1170.95, subdivision (c), which states: “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.” At this step, “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, 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.” (People v. Verdugo (2020) 44 Cal.App.5th
320, 330, review granted Mar. 18, 2020, S260493.)
Appellant made a prima facie showing under the first
sentence, or first step, of section 1170.95, subdivision (c), as the
record does not establish appellant’s ineligibility for resentencing
as a matter of law. As appellant argues and the Attorney
General concedes, based on the jury instructions given at
appellant’s trial and the jury’s guilty verdict on second degree
11
murder, the jury could have found appellant guilty of murder
under a theory that he aided and abetted a robbery with murder
as the natural and probable consequence of the commission of the
robbery, a theory of murder no longer viable after Senate Bill No.
1437 amended section 188. (People v. Gentile (2020) 10 Cal.5th
830, 839 [“We hold that Senate Bill 1437 bars a conviction for
second degree murder under the natural and probable
consequences theory”].) Thus, the trial court erred in denying
appellant’s petition for resentencing on the ground appellant did
not make a prima facie showing he is eligible for resentencing
under section 1170.95, and we reverse the order.9
Upon remand, the trial court must follow the steps outlined
in section 1170.95, beginning with the appointment of counsel for
appellant and briefing by the parties under section 1170.95,
subdivision (c). We express no opinion on whether appellant can
make the next prima facie showing under section 1170.95, within
the meaning of the last sentence of subdivision (c), or whether
appellant is entitled to an evidentiary hearing, as described in
subdivision (d) of section 1170.95.
9 Appellant also argues, and the Attorney General concedes,
the trial court erred in denying appellant’s section 1170.95
petition on the ground Senate Bill No. 1437 and section 1170.95
are unconstitutional, as case law holds that the bill and statute
are constitutional. (See, e.g., People v. Lamoureux (2019) 42
Cal.App.5th 241; People v. Johns (2020) 50 Cal.App.5th 46.)
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DISPOSITION
The order denying the petition for resentencing is reversed
and the matter is remanded for further proceedings under section
1170.95, consistent with this opinion.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
CRANDALL, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
13