People v. Guerrero CA4/2

Filed 8/24/21 P. v. Guerrero CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E075851

v. (Super.Ct.No. RIF123125)

JUAN ANTONIO GUERRERO, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed with directions.

Jeffrey S. Kross, 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, Assistant Attorney General, Meredith S. White and Scott C.

Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

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 Defendant and appellant, Juan Antonio Guerrero, filed a petition for resentencing

pursuant to Penal Code section 1170.95,1 which the superior court summarily denied.

On appeal, defendant contends the court erred in summarily denying his petition prior to

issuing an order to show cause. We affirm with modifications.

I. FACTUAL AND PROCEDURAL BACKGROUND2

On April 10, 2005, Anthony Lopez was traveling on Mission Boulevard in his

1988 Cadillac and saw a friend, Richard Gutierrez, riding his bicycle near Mission

Boulevard. Lopez stopped near Lee’s Market, and Gutierrez came over to the driver’s

side window of Lopez’s car to talk to him. A few minutes later, a car stopped quickly

near them, and a man, later identified as defendant’s son, Edwardo Guerrero, got out of

the driver’s seat of the vehicle. Edwardo approached Gutierrez and asked him, “‘What

the fuck is your problem?’” Edwardo then produced a handgun from his waistband and

shot Gutierrez once in the arm. (Guerrero, supra, E041870.)

Gutierrez ran toward Lee’s Market, and Edwardo chased after him and fired more

shots at him. Gutierrez entered the market and tried to hold the glass door shut, but

Edwardo fired a shot that shattered the glass door. Edwardo then entered the market and

fired multiple shots at Gutierrez, changing the magazine in the gun at one point.

Gutierrez was hit multiple times and died at the scene. (Guerrero, supra, E041870.)

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 By order dated April 6, 2021, we granted the People’s request that we take
judicial notice of the record in defendant’s appeal from the judgment. (See People v.
Guerrero (Feb. 22, 2008, E041870) [nonpub. opn.] (Guerrero).) (Evid. Code, § 459.)

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 After Edwardo entered the market, Lopez looked over at the car in which

Edwardo had arrived and saw defendant sitting in the driver’s seat. Lopez believed that

defendant had slid over from the passenger seat to the driver’s seat. While Edwardo was

in the store, defendant warned Lopez that he better not leave. When Edwardo came out

of the store and jumped into the passenger side of the car, Lopez, fearing that he might

be the next victim, quickly pulled out of the parking lot. Defendant and Edwardo chased

Lopez for a considerable distance at a high speed before Lopez lost them. (Guerrero,

supra, E041870.)

On April 12, 2005, police arrested defendant and Edwardo. Defendant’s defense

was that he had been mistakenly identified as the driver of the getaway car.

Alternatively, he claimed that if he was in the vehicle, he did not know his son Edwardo

intended to shoot Gutierrez and that he only aided his son in escaping from the area after

the offense had been committed. (Guerrero, supra, E041870.)

In support of the latter defense, defendant’s counsel pointed to Lopez’s testimony

that defendant was in the passenger seat when they arrived at the market and argued that

this indicated that he did not know what his son intended at that time. Defendant’s

counsel also noted that there was no evidence that he gave any aid to Edwardo, other

than driving him away from the scene after the offense had been committed. (Guerrero,

supra, E041870.)

On September 27, 2006, a jury found defendant guilty of first degree murder.

(§ 187, subd. (a).) The superior court sentenced defendant to 25 years to life.

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 Defendant appealed his conviction contending the superior court prejudicially

erred and violated his constitutional rights when it refused to instruct the jury on the

elements of accessory after the fact and that his counsel was ineffective when counsel

failed to request a pinpoint instruction concerning his defense theory that he was only an

accessory after the fact. (Guerrero, supra, E041870.)

In rejecting defendant’s contentions on appeal, this court noted that the jury was

properly instructed on aiding and abetting. The jury was informed that an aider and

abettor must have knowledge of the perpetrator’s intent to commit the crime, that the

defendant intended to aid and abet the perpetrator in committing the crime before or

during the commission of the crime, and that the defendant’s words or conduct did in

fact aid and abet the perpetrator’s commission of the crime. (Guerrero, supra,

E041870.)

On January 2, 2019, defendant filed a petition for resentencing pursuant to

section 1170.95. The People filed a response based, in large part, on the purported

unconstitutionality of section 1170.95. However, the People also alleged that defendant

was not entitled to relief because he directly aided and abetted the killing with the intent

to kill or was a major participant acting with reckless indifference to human life. In a

reply, defendant’s counsel argued that the evidence showed that defendant was not the

actual killer and was convicted on a natural and probable consequences theory.

At the hearing on the petition, the superior court observed, “A review of the

record in this case shows it was a two defendant case. [Defendant] was convicted of

first-degree murder, sentenced to 25 years to life. The jury instructions do not include

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felony murder or natural and probable [consequences] instructions. The 2008 appellate

opinion in imaging shows he’s not the shooter, but he was the getaway driver, and the

theory was direct aiding and abetting.” Defense counsel submitted, and the court

summarily denied the petition.3 Defense counsel lodged an objection for the record.

II. DISCUSSION

Defendant contends the superior court erred in summarily denying his petition

prior to issuing an order to show cause. We disagree.

“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘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,

subd. (f).) In addition to substantively amending sections 188 and 189 of the Penal Code,

Senate Bill 1437 added section 1170.95, which provides a procedure for convicted

murderers who could not be convicted under the law as amended to retroactively seek

relief.” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)

3 The reporter’s transcript reflects that the superior court summarily denied the
petition. The minute order indicates the court dismissed the petition. We shall direct the
court to correct the minute order. (See People v. Jones (2012) 54 Cal.4th 1, 89 [The
minute order “‘does not control if different from the trial court’s oral judgment and may
not add to or modify the judgment it purports to digest or summarize.’”].) The reviewing
court has the authority to correct clerical errors in the minute order. (People v. Contreras
(2009) 177 Cal.App.4th 1296, 1300, fn. 3.)

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 “Pursuant to section 1170.95, an offender must file a petition in the sentencing

court averring that: ‘(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[;] [¶] [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.’

[Citations.] Additionally, the petition shall state ‘[w]hether the petitioner requests the

appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply with

subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of

another petition.’” (Lewis, supra, 11 Cal.5th at pp. 959-960.)

“Where the petition complies with [section 1170.95,] subdivision (b)’s three

requirements, then the court proceeds to subdivision (c) to assess whether the petitioner

has made ‘a prima facie showing’ for relief.” (Lewis, supra, 11 Cal.5th at p. 960.) A

court may rely on the record of conviction in determining whether a prima facie showing

has been made. (Id. at p. 970.) “The record of conviction will necessarily inform the

trial court’s prima facie inquiry under section 1170.95, allowing the court to distinguish

petitions with potential merit from those that are clearly meritless.” (Id. at p. 971.)

“While the trial court may look at the record of conviction after the appointment of

counsel to determine whether a petitioner has made a prima facie case for section

1170.95 relief, the prima facie inquiry under subdivision (c) is limited. Like the

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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.”’” (Ibid.)

“‘However, if the record, including the court’s own 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.”’” (Lewis, supra, 11 Cal.5th at

p. 971.) “Appellate opinions . . . are generally considered to be part of the record of

conviction.” (Id. at p. 972.) “In reviewing any part of the record of conviction at this

preliminary juncture, a trial court should not engage in ‘factfinding involving the

weighing of evidence or the exercise of discretion.’” (Ibid.) “In sum, the parties can, and

should, use the record of conviction to aid the trial court in reliably assessing whether a

petitioner has made a prima facie case for relief under [section 1170.95,] subdivision (c).”

(Ibid.)

In this case, the superior court denied defendant’s petition at the prima facie stage

under section 1170.95, subdivision (c). “A denial at that stage is appropriate only if the

record of conviction demonstrates that ‘the petitioner is ineligible for relief as a matter of

law.’ [Citations.] This is a purely legal conclusion, which we review de novo.” (People

v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978;

accord, People v. Galvan (2020) 52 Cal.App.5th 1134, 1137, 1142, review granted

Oct. 14, 2020, S264284.)

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 Here, after the superior court properly reviewed the jury instructions and this

court’s opinion from defendant’s appeal from the judgment, it observed that the jury

instructions did “not include felony murder or natural and probable [consequences]

instructions.” This expressly refuted the allegation in defendant’s petition that he had

been convicted under the theory of felony murder or murder under the natural and

probable consequences doctrine. Thus, the superior court concluded that the theory upon

which defendant was convicted was “direct aiding and abetting.” The court’s conclusion

is correct.

The absence of instructions on the felony-murder rule or the natural and probable

consequences doctrine means that the jury could only have convicted defendant as a

direct aider and abettor of the killing acting with malice aforethought. Therefore,

defendant was ineligible for section 1170.95 relief as a matter of law. (People v. People

v. Offley (2020) 48 Cal.App.5th 588, 595-596 [“The change” in the law “did not,

however, alter the law regarding the criminal liability of direct aiders and abettors of

murder because such persons necessarily ‘know and share the murderous intent of the

actual perpetrator.’”]; People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5, review

granted July 22, 2020, S262835 [“[I]f the jury was not instructed on a natural and

probable consequences or felony-murder theory of liability, the petitioner could not

demonstrate eligibility as a matter of law because relief is restricted to persons convicted

under one of those two theories.”]; People v. Palacios (2020) 58 Cal.App.5th 845, 857,

review granted Feb. 24, 2021, S266701 [“[D]efendant’s record of conviction shows that

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he directly aided and abetted in the murder,” rendering him ineligible for relief.].) The

superior court properly denied defendant’s petition.

III. DISPOSITION

The order denying defendant’s petition is affirmed. The superior court clerk is

directed to modify the August 21, 2020, minute order to reflect that the court denied,

rather than dismissed, defendant’s petition for resentencing.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:

SLOUGH
J.

MENETREZ
J.

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