People v. Ditommaso CA4/2

Filed 9/16/21 P. v. Ditommaso 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E075736

v. (Super.Ct.No. FWV024365)

KARL JOSEPH DITOMMASO, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson

Uhler, Judge. Reversed with directions.

Lizabeth Weis, 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, Daniel Rogers and Lise S.

Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

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 Defendant and appellant, Karl Joseph Ditommaso, filed a petition to vacate his

conviction and sentence pursuant to Penal Code section 1170.95,1 which the trial court

denied. On appeal, defendant contends the court erred in summarily denying his petition.

We reverse and remand the matter for reconsideration.

I. FACTUAL AND PROCEDURAL BACKGROUND2

Defendant’s wife had an affair with the victim. On April 11, 1992, defendant

asked his stepsister to arrange a meeting with the victim. On the morning of April 13,

defendant told his stepsister to pick up his friend, Scott Harrison, from the train station.

Defendant told his stepsister that Harrison would be meeting with the victim instead of

him.

At the time of the arranged meeting, Harrison waited for the victim with

defendant’s stepsister; he told her he was going to scare the victim into leaving

defendant’s wife alone. Harrison told the stepsister to ask the victim for help with her

car. As the victim began to help her, Harrison jumped out of the trees with a gun in his

hand. He confronted the victim, put a piece of duct tape over his mouth, and placed him

in the back seat of the victim’s car. Harrison ordered the stepsister to drive the victim’s

car. While in the car, Harrison fatally shot the victim.

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

2 We derive much of our factual recitation from the opinion from defendant’s
appeal of the judgment. (People v. Ditommaso (E032315, June 8, 2004) [nonpub. opn.].)

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 The next morning, the stepsister asked defendant why he did not tell her what was

going to happen. Defendant responded that he knew she would not have helped if she

had known the truth. Harrison then approached defendant, and the two then shook hands,

smiled, and smoked cigars.

Defendant and Harrison asked the stepsister’s husband for help moving the

victim’s body from the back seat of the victim’s car into the trunk, but he declined to

help. Harrison then drove the victim’s car, with the victim’s body, to Mexico. Defendant

followed in his vehicle. Together, they wiped the victim’s car with a towel and removed

the license plates. They returned to the United States in defendant’s vehicle. Two days

later, a Mexican police officer discovered the victim’s car and body in Tijuana. The

victim’s case was closed in 1993.

The victim’s case was reopened in 2001. Sheriff’s deputies subsequently arrested

defendant and advised him of his Miranda3 rights. After defendant waived his rights, he

admitted that he knew that his wife and the victim were having an affair. Defendant

admitted that he wanted Harrison to scare the victim by slapping him around. Defendant

said he never wanted the victim to be hurt, he did not participate in or direct the victim’s

death, he did not mastermind the encounter, and he was at home with his wife’s daughter

at the time of the encounter.

3 Miranda v. Arizona (1966) 384 U.S. 436.

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 Defendant admitted that he knew Harrison was a violent person and always carried

a gun, but defendant claimed that he never intended for anyone to get hurt, and he never

ordered Harrison to kill the victim. Defendant stated that the day after the murder, he

saw the victim’s body in the back seat of the victim’s car, which was parked in the garage

of his stepsister’s former condominium. Harrison told defendant that he shot the victim

and threatened that he would hurt defendant and his wife’s daughter if defendant did not

“go along with everything.” Defendant admitted that he followed Harrison to Mexico to

drop off the victim’s car and body.

On January 30, 2002, the People charged defendant by information with murder

(§ 187, subd. (a), count 1) and alleged defendant knew that during the commission of the

offense, a principal was armed with a firearm (§ 12022, subd. (d)). The People additionally

alleged as special circumstance allegations that defendant intentionally killed the victim by

means of lying in wait (§ 190.2, subd. (a)(15)) and, while committing the murder,

defendant was engaged in the crime of kidnapping (§ 190.2, subd. (a)(17)). The court later

dismissed the lying-in-wait special circumstance.

The jury found defendant guilty of the lesser included offense of second degree

murder. The court granted the prosecution’s motion to dismiss the arming allegation

after the jury failed to render any finding on it.4 On September 4, 2002, the court

sentenced defendant to prison for 15 years to life.

4Nothing in this record reflects what happened to the kidnapping-murder special
circumstance allegation. (§ 190.2, subd. (a)(17).)

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 On June 1, 2020, defendant filed a petition to vacate his conviction and sentence

pursuant to section 1170.95. Defendant alleged he had been convicted of murder pursuant

to the felony-murder rule or natural and probable consequences theory, was not the actual

killer, did not intend to kill, was not a major participant acting with reckless disregard to

human life, and requested appointment of counsel.

The People filed an opposition to the petition on August 27, 2020, alleging

defendant had failed to make a prima facie showing because he was not convicted under

a felony-murder theory. The People further argued defendant was ineligible for relief

because he was a major participant, acting with reckless indifference to human life. The

People attached to their petition a copy of this court’s opinion from defendant’s appeal of

the judgment.

Without appointing counsel for defendant and without holding a hearing, the trial

court denied the petition. The court noted that the jury had not been instructed on the

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felony-murder rule or the natural and probable consequences theory;5 thus, the court

ruled defendant was not entitled to relief pursuant to section 1170.95.

II. DISCUSSION

Defendant contends the court erred in summarily denying his petition because it

failed to appoint him counsel after he filed a facially valid petition. We agree.

“Effective January 1, 2019, the Legislature passed Senate Bill 1437 [(2017-2018

Reg. Sess.)] ‘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

5 The jury instructions are not part of the record on appeal. However, the opinion
appears to contradict the trial court’s conclusion about the instructions to the jury: “In this
case, it was uncontradicted that Harrison, not defendant, shot the victim. Therefore,
defendant’s liability for second degree murder was necessarily based on an aiding and
abetting theory. Aiding and abetting requires that the defendant ‘by act or advice, aids,
promotes, encourages or instigates[] the commission of the crime.’ ‘[A] person who aids
and abets a confederate in the commission of a criminal act is liable not only for the crime
(the target crime), but also for any other offense (nontarget crime) committed by the
confederate as a ‘natural and probable consequence’ of the crime originally aided and
abetted.’” (People v. Ditommaso, supra, E032315, fn. omitted.) “[T]he trial court
specifically instructed the jury that kidnap felony murder under a conspiracy or aiding and
abetting theory was murder in the first degree.” (Ibid.) “[T]here was also substantial
evidence to support defendant’s conviction for second degree murder based on the implied
malice, under the natural and probable consequences doctrine.” (Ibid.) “Defendant may
properly be convicted of second degree murder under the natural and probable
consequence doctrine so long as the evidence shows the direct perpetrator acted with
malice.” (Ibid.)

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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).)

“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.)

“[P]etitioners are entitled to the appointment of counsel upon the filing of a

facially sufficient petition . . . .” (Lewis, supra, 11 Cal.5th at p. 957.) “[O]nly after the

appointment of counsel and the opportunity for briefing may the superior court consider

the record of conviction to determine whether ‘the petitioner makes a prima facie

showing that he or she is entitled to relief.’” (Ibid.)

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 Here, defendant filed a facially valid petition. He alleged he had been convicted

of murder pursuant to the felony-murder rule or natural and probable consequences

theory, was not the actual killer, did not intend to kill, was not a major participant acting

with reckless disregard to human life, and requested appointment of counsel. Thus, the

superior court should have appointed counsel for defendant and allowed the filing of a

reply to the People’s opposition prior to considering the record of conviction and

proceeding to a prima facie determination of defendant’s petition. Thus, the trial court

erred in summarily denying defendant’s petition.

Defendant contends the trial court’s error was not harmless because the jury’s

conviction of defendant for murder could have been based upon the natural and probable

consequences theory. We agree.

The deprivation of a defendant’s right to counsel upon the filing of a facially valid

petition is tested for prejudice under People v. Watson (1956) 46 Cal.2d 818. (Lewis,

supra, 11 Cal.5th at pp. 957-958.) “[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.”’” (Id. at p. 974.)

“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.” (Lewis, supra, 11 Cal.5th at p. 971.) “While

the trial court may look at the record of conviction after the appointment of counsel to

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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 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.”’ [Citation.] ‘[A] court should not reject the petitioner’s factual

allegations on credibility grounds without first conducting an evidentiary hearing.’

[Citation.] ‘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.”’” (Ibid.)

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

conviction. [Citation] However . . . the probative value of an appellate opinion is case-

specific, and ‘it is certainly correct that an appellate opinion might not supply all

answers.’ [Citation.] 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.’” (Lewis, supra, 11 Cal.5th at p. 972.)

“[T]he ‘prima facie bar was intentionally and correctly set very low.’” (Ibid.)

We cannot say that it is reasonably probable that had defendant been afforded

assistance of counsel that his petition would, nonetheless, have been summarily denied

without an evidentiary hearing. Here, as noted in footnote No. 5, ante, it appears that

contrary to the trial court’s conclusion, the jury was instructed with the natural and

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probable consequences doctrine. Indeed, although this court held that “there was

substantial evidence to support defendant’s second degree murder conviction based on

express malice,” this court also held “there was also substantial evidence to support

defendant’s conviction for second degree murder based on the implied malice, under the

natural and probable consequences doctrine.” (People v. Ditommaso, supra, E032315.)

Determining under which theory the jury found defendant guilty would constitute

quintessentially prohibited “‘factfinding involving the weighing of evidence or the

exercise of discretion.’” (Lewis, supra, 11 Cal.5th at p. 972.)

Nonetheless, it is also possible that the trial court was looking at the actual jury

instructions when it stated: “The jury was never instructed on second-degree murder

based upon the felony-murder rule or natural and probable consequences doctrine.” If so,

this would make defendant prima facie ineligible for relief. (People v. Soto (2020)

51 Cal.App.5th 1043, 1055, review granted Sept. 23, 2020, S263939 [Where the jury was

not instructed on felony-murder or the natural and probable consequences theories, “the

jury necessarily found [the defendant] culpable for murder based on his own actions and

mental state as a direct aider and abettor,” and, therefore, the defendant was ineligible for

section 1170.95 relief as a matter of law.]; 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. Cornelius (2020) 44 Cal.App.5th

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54, 58, review granted Mar. 18, 2020, S260410 [The defendant “was ineligible for relief

because he was not convicted of felony murder or murder as an aider or abettor under a

natural consequences theory.”].)

Similarly, if the record reflected that the jury had rendered a true finding on the

kidnapping-murder special circumstance, this would likewise render defendant ineligible

for relief because it would reflect the jury’s determination that defendant intended to kill

the victim. (People v. Verdugo (2020) 44 Cal.App.5th 320, 328, review granted Mar. 18,

2020, S260493; People v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted

Nov. 18, 2020, S264978 [true finding on burglary-murder special circumstance rendered

defendant ineligible for § 1170.95 relief]; accord, People v. Galvan (2020) 52 Cal.App.5th

1134, 1137, 1140-1141, review granted Oct. 14, 2020, S264284 [any murder special

circumstance finding under § 190.2, subd. (a)(17), renders a defendant ineligible for

§ 1170.95 relief as a matter of law]; People v. Jones (2020) 56 Cal.App.5th 474, 482,

review granted Jan. 27, 2021, S265854 [“A defendant with a special circumstance finding

under section 190.2, subdivision (d) is not eligible for relief under section 1170.95 as a

matter of law.”]; cf. People v. Gomez (2020) 52 Cal.App.5th 1, 15, review granted Oct.

14, 2020, S264033 [the jury’s true findings on robbery and kidnapping special

circumstance allegations rendered defendant ineligible for § 1170.95 relief as a matter of

law]; contra, People v. Torres (2020) 46 Cal.App.5th 1168, 1173, review granted June 24,

2020, S262011 [trial court’s exclusive use of jury’s special circumstance findings alone

was not sufficient to preclude § 1170.95]; accord, People v. Smith (2020) 49 Cal.App.5th

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85, 94, review granted July 22, 2020, S262835; People v. York (2020) 54 Cal.App.5th

250, 258, review granted Nov. 18, 2020, S264954; People v. Secrease (2021)

63 Cal.App.5th 231, 254, review granted June 30, 2021, S268862.)

Thus, we shall remand the matter so the trial court can appoint counsel, permit the

filing of a reply brief, and hold a hearing on whether defendant can make a prima facie

showing of eligibility. If, after reviewing the record and hearing from counsel, the trial

court finds defendant has failed to make a prima facie showing, it shall again summarily

deny the petition.

“If the trial court determines that a prima facie showing for relief has been made,

the trial court [shall] issue[] an order to show cause, and then . . . hold a hearing ‘to

determine whether to vacate the murder conviction and to recall the sentence and

resentence the petitioner on any remaining counts in the same manner as if the petitioner

had not . . . previously been sentenced, provided that the new sentence, if any, is not

greater than the initial sentence.’ [Citation.] ‘The prosecutor and the petitioner may rely

on the record of conviction or offer new or additional evidence to meet their respective

burdens.’ [Citation.] At the hearing stage, ‘the burden of proof shall be on the

prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for

resentencing.’” (Lewis, supra, 11 Cal.5th at p. 960.)

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 III. DISPOSITION

The order denying defendant’s petition is reversed. The matter is remanded to the

trial court with directions to appoint counsel for defendant, allow the filing of a reply to

the People’s opposition, and hold a hearing to determine whether defendant can make a

prima facie showing of relief.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.
We concur:

RAMIREZ
P. J.

FIELDS
J.

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