People v. Santos CA2/5

Filed 8/16/21 P. v. Santos CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B306738

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA124342)
v.

SANDRO SANTOS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Mark S. Arnold, Judge. Reversed and
remanded.
Lynda A. Romero, 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, Senior
Assistant Attorney General, Amanda Lopez and Chung L. Mar,
Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________________________

In 1996, a jury convicted defendant and appellant Sandro
Santos1 of first degree murder (Pen. Code, § 187, subd. (a)),2
among other crimes, and found true the special circumstance that
Santos committed murder in the commission of a robbery
(§ 190.2, subd. (a)(17)), and the allegation that he personally used
a firearm during the commission of the crimes (§ 12022.5, subd.
(a)). In 2020, Santos petitioned for resentencing pursuant to
section 1170.95 and Senate Bill No. 1437 (Senate Bill 1437),
which provide for vacatur of a defendant’s murder conviction and
resentencing if the defendant was convicted of felony murder and
the defendant (1) was not the actual killer, (2) did not act with
the intent to kill, and (3) was not a major participant who acted
with reckless indifference to human life. (§§ 1170.95, subd. (a),
189, subd. (e).) The trial court summarily denied the petition
without appointing counsel, finding that Santos was ineligible for
resentencing as a matter of law because “[Santos] was found by
the jury to be the shooter in that the personal use of a firearm
allegation (P.C. 12022.5 (a)) [was found] to be true.”

1 Santos has also used the name Glenn Gilbert Avilize.

2 Allfurther statutory references are to the Penal Code
unless otherwise indicated.

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 Santos contends that the trial court erred when it found
him ineligible for relief. He argues that the filing of a facially
sufficient petition for resentencing under section 1170.95 entitles
him to appointment of counsel and the opportunity for further
briefing, regardless of the petition’s merit. Santos asserts that
the trial court erred when it found that, as the actual killer, he
was ineligible for resentencing, either because the court engaged
in impermissible fact-finding, or because it relied on the personal
firearm use enhancement. Santos also contends that the jury’s
special circumstance finding does not bar his eligibility for
resentencing as a matter of law.
The People urge us to affirm the trial court’s order on the
basis that Santos was a major participant in the underlying
robbery and acted with reckless indifference to human life,
because although the trial court did not deny the petition on that
basis, we may affirm on any ground that is legally correct.
Our Supreme Court has held that the filing of a facially
sufficient petition entitles a petitioner to appointment of counsel
and briefing under section 1170.95. In this case, the trial court’s
failure to appoint counsel was not harmless. We agree with
Santos that the trial court erred to the extent that it engaged in
fact finding, as its evaluation of the facts was inappropriate when
determining whether he made a prima facie showing of
entitlement under section 1170.95, subdivision (c). We further
agree with Santos that neither the jury’s robbery-murder special
circumstance finding nor its personal firearm use finding bars
him from eligibility for resentencing. We reverse the order
denying Santos’s 1170.95 petition, and we remand the matter for
the trial court to appoint counsel and permit briefing.

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 FACTS AND PROCEDURAL HISTORY3

“On October 10, 1995, [Ricardo] Aguilera agreed to meet
with defendant to purchase a gun. Aguilera drove to a house on
Highland Avenue with his teenage stepson Gillard and Gillard’s
cousin Laws. Neither Aguilera, Laws nor Gillard was in
possession of a firearm. Aguilera entered the house. Inside the
house were defendant and [Jason] Richard with many firearms
displayed. Aguilera inspected a nine-millimeter gun, and
defendant quoted a price. Aguilera thought the price might be
too high so he went outside to discuss it with Laws. Laws and
Aguilera returned to the house. Gillard continued to wait in the
car listening to music.
“Defendant pointed a gun at Laws and Aguilera, and told
them to lie on the ground. Richard went through the two men’s
pockets and removed cash and papers. Richard then went
outside at defendant’s behest to retrieve Gillard. Gillard entered
the house. When he saw Aguilera and Laws lying on the ground,
Gillard thought they were dead and he would be killed. He
turned to flee when he was confronted by Richard with a gun.
Gillard and Richard struggled for the gun. The gun fired.
During the struggle, defendant, who was across the living room
from Gillard and Richard, fired a nine-millimeter weapon.
Gillard was shot in the ribs and thigh, and Richard was fatally
wounded. Richard had been shot twice in the neck and once in
the torso. One neck wound and the torso wound were fatal. The
torso wound was caused by a gun fired within two feet of Richard.

3The facts are drawn from this court’s prior unpublished
opinion in People v. Santos (Feb. 20, 1998, B108055) (Santos), of
which we have taken judicial notice.

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The fatal neck wound was inflicted by a .38-caliber weapon.
Aguilera was shot in both shoulders and one knee.
“After the shooting stopped, defendant gathered a number
of guns in a duffel bag and left the residence through the back
door.
“Two nine-millimeter guns were involved in the shootings,
as well as at least one .38 caliber gun. Nine millimeter bullets
were removed from Aguilera and Gillard. A .38 caliber bullet was
removed from Aguilera and Richard.” (Santos, supra, B108055,
at pp. 3–4.)
At trial, the prosecution argued that Santos was guilty of
murder on either a felony murder or provocative act theory of
liability. (Santos, supra, B108055, at p. 4.) The jury convicted
Santos of first degree murder (§ 187, subd. (a) [count 1]), three
counts of attempted voluntary manslaughter (§§ 187/664 [counts
2, 4 & 6]), and two counts of second degree robbery (§ 211 [counts
3 & 5]). (Id. at p. 2.) It found true the special circumstance that
Santos committed murder in the commission of a robbery (§
190.2, subd. (a)(17)), and the allegation that he personally used a
firearm during the commission of the crimes (§ 12022.5, subd.
(a)). (Ibid.) The trial court sentenced Santos to life without the
possibility of parole, plus 19 years in state prison. (Ibid.)
On appeal, Santos argued that there was insufficient
evidence to support his first degree murder conviction on either a
felony murder theory or a provocative act theory of liability. The
court of appeal held that the evidence supported Santos’s murder
conviction under a provocative act theory and declined to reach
the question of whether substantial evidence supported the
conviction on a felony-murder theory. (Santos, supra, B108055,
at p. 4.)

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 On April 8, 2020, Santos filed a section 1170.95 petition
seeking vacatur of his murder conviction, which the court denied
in a minute order dated May 27, 2020. The court ruled:
“Defendant was found by the jury to be the shooter in that the
personal use of a firearm allegation (P.C. 12022.5 (a)) to be true
[sic].” 4
Santos timely appealed.

DISCUSSION
Section 1170.95

“Senate Bill No. 1437, which went into effect on January 1,
2019, amended section 189 to limit the scope of liability for
murder on a felony-murder theory. [Citation.] With respect to
felony murder and as applicable to [Santos], section 189,
subdivision (a) states ‘All murder . . . that is committed in the
perpetration of, or attempt to perpetrate, . . . robbery, [or]
burglary . . . is murder of the first degree.’ However, section 189,
subdivision (e)—the new provision added by Senate Bill No.
1437—limits liability for felony murder to persons for whom ‘one

4 Santos filed a nearly identical section 1170.95 petition on
June 18, 2020, which the court denied the same day in a minute
order, stating: “Defendant is an actual shooter which resulted in
the death of the victim. He is clearly a major participant and
acted with reckless indifference to human life. Petition under
P.C. 1170.95 is denied.” The People assert that the second
petition was successive and procedurally barred, but that we
need not address that issue because although the trial court’s
first denial order was not premised on a major participant
finding, this court may uphold the denial on any legally correct
theory.

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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, 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.’ [Citation.]” (People v. Drayton (2020) 47
Cal.App.5th 965, 972–973 (Drayton); abrogated on another
ground in People v. Lewis (July 26, 2021, No. S260598) __ Cal.5th
__ [2021 WL 3137434] (Lewis).)
If, as Santos did here, a petitioner files a section 1170.95
petition that contains all of the statutorily required information
and requests counsel, the court must appoint counsel and order
briefing. (Lewis, supra, __ Cal.5th at p. __ [2021 WL 3137434, at
*3–*10].) The court then evaluates whether the petitioner has
made a prima facie showing that he or she is eligible for relief.
(Id. at *3.) To do so, the trial court may review the record of
conviction, however, “the prima facie inquiry under subdivision
(c) is limited. Like the analogous prima facie inquiry in habeas
corpus proceedings, “‘“the court takes petitioner’s factual
allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause.”’ (Drayton, supra, 47 Cal.App.5th at p.
978, quoting Cal. Rules of Court, rule 4.551(c)(1)).) ‘[A] court
should not reject the petitioner’s factual allegations on credibility
grounds without first conducting an evidentiary hearing.’ (Ibid.,
fn. omitted, citing In re Serrano (1995) 10 Cal.4th 447, 456
(Serrano).) ‘However, if the record, including the court’s own

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documents, “contain[s] facts refuting the allegations made in the
petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.”’ (Drayton, at p. 979,
quoting Serrano, at p. 456.)” (Id. at *10.)
“[A] petitioner ‘whose petition is denied before an order to
show cause issues has the burden of showing “it is reasonably
probable that if [he or she] had been afforded assistance of
counsel his [or her] petition would not have been summarily
denied without an evidentiary hearing.”’ ([People v.] Daniel[
(2020)] 57 Cal.App.5th [666,] 676, review granted [Feb. 24, 2021,
S266336].)” (Lewis, supra, __ Cal.5th at p. __ [2021 WL 3137434,
at *12].)

Analysis

Our Supreme Court has recently held that the filing of a
facially sufficient petition—i.e. a petition that contains the basic
averments required by subdivision (b)(1)(A), (B) and (C)5—is
sufficient to establish that the petitioner has made a prima facie
showing of eligibility for relief under section 1170.95, subdivision
(c). (Lewis, supra, __ Cal.5th at p. __ [2021 WL 3137434, at *3-
*10].) Here, the trial court’s failure to appoint counsel was error,

5 Section 1170.95, subdivision (b)(1) provides: “The petition
shall include all of the following: [¶] (A) A declaration by the
petitioner that he or she is eligible for relief under this section,
based on all the requirements of subdivision (a). [¶] (B) The
superior court case number and year of the petitioner’s
conviction. [¶] (C) Whether the petitioner requests the
appointment of counsel.”

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and because we conclude “‘“it is reasonably probable that if
[Santos] had been afforded assistance of counsel his . . . petition
would not have been summarily denied without an evidentiary
hearing”’ [citation]” (Id. at *12), the error cannot be deemed
harmless.
There is no basis to deny the petition on the record before
us.6 First, a trial court may not engage in fact-finding at this
stage in proceedings. To the extent that the trial court evaluated
the facts underlying Santos’s conviction to determine that he was
a major participant in the burglary and acted with reckless
indifference to human life, such an inquiry requires fact-finding
and the weighing of evidence, which cannot take place until an
order to show cause issues and a hearing is held. (See Drayton,
supra, 47 Cal.App.5th at pp. 978–979.)
Second, contrary to the People’s argument, a trial court is
prohibited from finding a petitioner ineligible for relief under
section 1170.95, subdivision (c), solely on the basis of a special
circumstance finding made before People v. Banks (2015) 61
Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522
(Clark) were decided. (People v. York (2020) 54 Cal.App.5th 250,
257–263 (York), review granted Nov. 18, 2020, S264954; People v.
Torres (2020) 46 Cal.App.5th 1168, 1180 (Torres), abrogated on
another ground in Lewis, supra, __ Cal.5th at p. __ [2021 WL
3137434]; People v. Smith (2020) 49 Cal.App.5th 85, 93-94
(Smith), review granted July 22, 2020, S262835.) We have
explained that “[i]n their wording, the requirements for a special
circumstance finding are . . . identical to the requirements for
felony murder, as it is currently defined. However, in [Banks and

6 The record on appeal does not contain the record of
conviction in its entirety.

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Clark], our Supreme Court ‘construed the meanings of “major
participant” and “reckless indifference to human life” “in a
significantly different, and narrower manner than courts had
previously.” (Torres, supra, 46 Cal.App.5th at p. 1179.)’ (Smith,
supra, 49 Cal.App.5th at p. 93.) Where a special circumstance
finding was made before Banks and Clark, the terms ‘major
participant’ and ‘reckless indifference’ underlying that finding
have significantly different meanings than these terms have for
purposes of convicting a defendant of murder pursuant to section
189, subdivision (e)(3), as amended by Senate Bill 1437. As a
consequence, a pre-Banks and Clark special circumstance finding
cannot preclude eligibility for relief under . . . section 1170.95[,
subdivision (c),] . . . because the factual issues that the jury was
asked to resolve in a trial that occurred before Banks and Clark
were decided are not the same factual issues our Supreme Court
has since identified as controlling.” (York, supra, at p. 258, fn.
omitted.) The People offer no persuasive reason for us to
abandon our prior holdings.
Finally, a finding under section 12022.5, subdivision (a),
that a defendant personally used a gun does not automatically
preclude eligibility under section 1170.95. (See People v. Offley
(2020) 48 Cal.App.5th 588, 598–599 (Offley) [jury’s true finding
under §12022.53, subd. (d) alone does not preclude eligibility for
resentencing under §1170.95, subd. (c)].) In Offley, our colleagues
in Division One of the Second District of the Court of Appeal
addressed the related issue of whether a section 12022.53,
subdivision (d) enhancement automatically precludes relief. The
facts in Offley varied significantly from this case—Offley was
tried with multiple defendants and convicted of second degree
murder. The jury in Offley’s case found true the allegation that

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Offley personally and intentionally discharged a firearm causing
the death of the victim under section 12022.53, subdivision (d).
Moreover, Offley’s jury was instructed on the natural and
probable consequences doctrine as it relates to conspiracy to
murder. Regardless of these differences, however, the section
12022.53, subdivision (d) enhancement involved is analogous to
the firearm use enhancement in this case, in that both are
“general intent enhancement[s], and do[] not require the
prosecution to prove that the defendant harbored a particular
mental state as to the victim’s injury or death.” (Offley, supra, 48
Cal.App.5th at p. 598 [§12022.53, subd. (d)]; see also People v.
Wardell (2008) 162 Cal.App.4th 1484, 1494–1495 [§12022.5, subd.
(a) is a general intent enhancement].)
As the Offley court explained, “Both express and implied
malice require proof of the defendant’s mental state. In the case
of express malice, the defendant must have intended to kill.
[Citation.] Implied malice also involves a mental component,
namely a ‘““conscious disregard for the danger to life that the
[defendant’s] act poses.”’ [Citation.] This requires ‘“examining
the defendant’s subjective mental state to see if he or she actually
appreciated the risk of his or her actions.” [Citation.] “It is not
enough that a reasonable person would have been aware of the
risk.”’ [Citation.]” (Offley, supra, at p. 598.) The Offley court
concluded that “Because an enhancement under section 12022.53,
subdivision (d) does not require that the defendant acted either
with the intent to kill or with conscious disregard to life, it does
not establish that the defendant acted with malice aforethought.”
(Ibid.) The same is true of section 12022.5, subdivision (a).
In this case, there is no information in the appellate record
that leads us to conclude Santos was Richard’s actual killer as a

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matter of law. Although the record of conviction (or new and/or
additional evidence submitted pursuant to section 1170.95,
subdivision (d)) may contain evidence that could lead the finder of
fact to conclude that this was the case, as we have discussed, the
trial court cannot properly engage in fact-finding at this early
stage.
Santos was tried under both the provocative act and the
felony murder theory of liability. Following the enactment of
Senate Bill 1437, he could still be liable for murder under a
provocative act theory of murder,7 or under a felony murder
theory if he was the actual killer, intended to kill, or was a major
participant in the robbery who acted with reckless indifference to
human life. (§§ 1170.95, subd. (a), 189, subd. (e).) None of those
conditions can be established definitively on the record before us.

7 “Under the provocative act [murder] doctrine, when the
perpetrator of a crime maliciously commits an act that is likely to
result in death, and the victim kills in reasonable response to
that act, the perpetrator is guilty of murder. [Citation.] ‘In such
a case, the killing is attributable, not merely to the commission of
a felony, but to the intentional act of the defendant or his
accomplice committed with conscious disregard for life.’
[Citation.]” (People v. Gonzalez (2012) 54 Cal.4th 643, 655, fn.
omitted (Gonzalez).) All of the courts to have considered the issue
have found that the provocative act theory of murder is not a
subset of the natural and probable consequences doctrine, and is
therefore a viable theory of liability following enactment of
Senate Bill 1437. (See People v. Mancilla (Aug. 12, 2021, No.
B308413) __ Cal.App.5th __ [2021 WL 3560657, at *5–*7]; People
v. Swanson (2020) 57 Cal.App.5th 604, review granted February
17, 2021, S266262; People v. Johnson (2020) 57 Cal.App.5th 257;
People v. Lee (2020) 49 Cal.App.5th 254, review granted July 15,
2020, S262459.) Santos does not argue otherwise.

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We therefore reverse and remand to the trial court to appoint
counsel and order briefing, as required under section 1170.95,
subdivision (c).

DISPOSITION

The trial court’s order denying Santos’s section 1170.95
petition is reversed and the matter is remanded for the trial court
to appoint counsel and order briefing from the parties pursuant
to section 1170.95, subdivision (c).

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.

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