People v. Renteria CA2/7

Filed 9/20/21 P. v. Renteria CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B304530

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A041259)
v.

LUIS RENTERIA,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, James D. Otto, Judge. Affirmed.
Waldemar D. Halka, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Amanda V. Lopez and Douglas L.
Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
________________________
 A jury in 1990 convicted Luis Renteria of second degree
murder and conspiracy to commit murder. In 2019 Renteria
petitioned for resentencing under Penal Code section 1170.95.1
After appointing counsel and holding an evidentiary hearing, the
superior court denied the petition, ruling Renteria was not
entitled to relief as a matter of law because his conspiracy
conviction necessarily meant Renteria intended to kill the victim,
Andy Velasquez, and, alternatively, the evidence at trial was
sufficient for the jury to have found Renteria guilty of murder
beyond a reasonable doubt under sections 188 and 189 as
amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Stats. 2018, ch. 1015) (Senate Bill 1437), effective January 1,
2019.
On appeal Renteria contends, to the extent the superior
court denied his petition based on his failure to make a
prima facie showing he was entitled to relief, the court erred in
considering the record of conviction to refute the allegations in
his verified petition. He also contends, even if the record of
conviction could be considered, the court improperly based its
decision on information in a probation officer’s report. To the
extent his petition was denied based on evidence presented at the
hearing, Renteria contends the court applied an incorrect
substantial evidence standard of proof and he was entitled to a
jury trial on any new facts or theories of liability presented by the
prosecutor. Because the record of conviction establishes Renteria
is ineligible for resentencing as a matter of law, any errors
committed by the superior court were harmless. We affirm.

1 Statutory references are to this code.

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 FACTUAL AND PROCEDURAL BACKGROUND
1. Renteria’s Trial for Murder
Our opinion affirming Renteria’s judgment of conviction
describes the evidence presented at trial and the jury’s verdict.
(People v. Renteria (Apr. 9, 1992, B056051) [nonpub. opn.].)
Renteria’s cousin was killed in a gang shooting on
August 27, 1988. Renteria, upset about his cousin’s death,
believed the Harbor City criminal street gang was responsible for
the shooting. Renteria told a former girlfriend he and his friends
were going to retaliate.
One of Renteria’s confederates, Augustine Rosas, called
several of their friends and went to Renteria’s place of business to
organize a “pay back.” Renteria was reluctant, but Rosas
persuaded him it was his duty as a family member to participate
in the response to his cousin’s death. Rosas and two other men
drove to Harbor City in a white truck. Renteria drove in a red
car.
While driving around in Harbor City in the early morning
of August 28, 1988, Rosas saw, parked in a lot, a white van he
believed had been involved in the shooting death of Renteria’s
cousin. Several men, including gang members, were standing in
the lot. According to Rosas, the people in the parking lot started
firing weapons; and he and the others in the truck fired back,
hitting one man. According to witnesses in the parking lot, the
men in the white truck and red car fired at them without
provocation. Someone in the truck or car shouted “Wilmas” at
the time of the shooting.2 Velasquez, who was talking to people
in the lot, was killed by a gunshot to the chest.

2 The West Side Wilmas and East Side Wilmas are criminal
street gangs. (See Satele v. Superior Court (2019) 7 Cal.5th 852,

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 In an information filed December 13, 1988 Renteria and
Rosas were jointly charged with Velasquez’s murder (§ 187) with
special allegations as to Renteria that a principal had been
armed with a firearm (§ 12022, subd. (a)) and as to Rosas that he
had personally discharged a firearm from a vehicle causing great
bodily injury or death (§ 12022.55). Pursuant to a negotiated
agreement, Rosas pleaded no contest to voluntary manslaughter
and admitted a firearm-use allegation under section 12022.5.
The information was subsequently amended to charge Renteria
with conspiracy to commit murder (§ 182, subd. (1)) and second
degree murder, again with a principal-armed enhancement
allegation. The conspiracy count alleged three overt acts:
Renteria armed himself with a .22 caliber gun; Renteria drove to
Harbor City; and Renteria or one of his coconspirators shot and
killed Velasquez.
The jury convicted Renteria of conspiracy to commit a
crime, rejecting the overt act allegation that Renteria had armed
himself with a .22 caliber gun but finding the other two overt act
allegations true. The jury also found Renteria guilty of second
degree murder and found true a principal had been armed with a
firearm during the commission of the offense. Renteria was
sentenced to an aggregate indeterminate state prison term of
16 years to life.
We affirmed the judgment on appeal, rejecting Renteria’s
claims of instructional and evidentiary error. (People v. Renteria,
supra, B056051.) Renteria did not challenge the sufficiency of
the evidence to support either the murder or the conspiracy
conviction.

856 [West Side Wilmas]; People v. Gomez (2018) 6 Cal.5th 243,
262 [East Side Wilmas].)

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 2. Renteria’s Section 1170.95 Petition for Resentencing
On February 13, 2019 Renteria, representing himself, filed
a petition for resentencing under section 1170.95 and requested
the court appoint counsel to represent him in the resentencing
proceedings. Renteria checked several boxes on the printed form
petition establishing his eligibility for resentencing relief,
including the boxes stating he had been convicted of murder
under the felony-murder rule or the natural and probable
consequences doctrine and could not now be convicted of first or
second degree murder because of changes made to sections 188
and 189 by Senate Bill 1437.
The court appointed counsel to represent Renteria (the
attorney who was already representing Renteria in connection
with a hearing to be held pursuant to People v. Franklin (2016)
63 Cal.4th 261) and ordered briefing pursuant to section 1170.95,
subdivision (c). The district attorney filed two opposition
memoranda, one arguing Senate Bill 1437 and section 1170.95
were unconstitutional; the second asserting Renteria was
ineligible for resentencing as a matter of law because the record
of conviction demonstrated he was a direct aider and abettor of
Velasquez’s murder who had acted with an intent to kill, as
established by his conviction for conspiracy to commit murder.
The memorandum contending Renteria was ineligible for
resentencing attached as exhibits a probation officer’s report and
the reporter’s transcript of Renteria’s sentencing hearing.
Renteria, through his counsel, responded to the
prosecutor’s constitutional arguments. Several months later,
Renteria filed his own supplemental memorandum in support of
the merits of his resentencing petition. Renteria attached as
exhibits a number of pages from the reporter’s transcript of his

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trial; several of the jury instructions, including CALJIC No. 3.02,
the standard instruction on the natural and probable
consequences doctrine; and the jury’s verdict forms finding
Renteria guilty of conspiracy to commit a crime, as charged in
count I of the information, and second degree murder, as charged
in count II of the information, with a true finding a principal in
the offense had been armed with a firearm.
At the Franklin hearing on October 3, 2019 the court
indicated it would review the section 1170.95 briefing and
determine whether to issue an order to show cause.
At a hearing on January 16, 2020 the court stated the
matter “is here for an O.S.C. regarding resentencing” and noted
the People had the burden of proving Renteria’s ineligibility for
relief.3 After hearing argument of counsel the court denied the
petition. Explaining its decision, the court stated, “First of all, I
think based on the record of the conviction, it’s clear that the
defendant does not qualify. In fact, there’s not even a prima facie
case made that he qualifies because a jury convicted him of
conspiracy to commit murder, which requires a jury to make a
finding that he had an intent to commit murder.” In addition,
the court ruled, “even if we got beyond that, the evidence that
went to the jury is sufficient for the defendant to be convicted
beyond a reasonable doubt even under the amended statute,
given the fact the jury found beyond a reasonable doubt that he
had the intent to commit murder and he was present and he

3 Renteria, who had been released on parole, was present at
the hearing with his counsel. Before addressing the merits of
Renteria’s petition, the prosecutor withdrew the argument
Senate Bill 1437 and section 1170.95 are unconstitutional.

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was—had a motive, was—bragged about the killing, even indeed
admitted he—that both he and others killed the victim.”
Renteria filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843
(Gentile)) and significantly narrowing the felony-murder
exception to the malice requirement for murder. (§§ 188,
subd. (a)(3), 189, subd. (e)(3); see People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis).) It also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder based on the natural and probable consequences doctrine
to petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Lewis, supra, 11 Cal.5th at
p. 957; Gentile, at p. 843.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c), requires the
court to appoint counsel to represent the petitioner, if requested;
to direct the prosecutor to file a response to the petition and
permit the petitioner to file a reply; and to determine if the
petitioner has made a prima facie showing that he or she is
entitled to relief. (See Lewis, supra, 11 Cal.5th at pp. 962-963.)

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 In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1170.95 and is entitled to
relief, the superior court properly examines the record of
conviction, “allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) Appellate opinions “are generally
considered to be part of the record of conviction.” (Lewis, at
p. 972.)4
The prima facie inquiry under subdivision (c), however, “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. . . . 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, at p. 971,
internal quotation marks omitted; see People v. Daniel (2020)
57 Cal.App.5th 666, 675, review granted Feb. 24, 2021, S266336
[any error in denying petition at prima facie stage without

4 While approving use of an appellate opinion as part of the
petitioner’s record of conviction when evaluating whether a prima
facie showing has been made under section 1170.95,
subdivision (c), the Lewis Court cautioned, “[T]he probative value
of an appellate opinion is case specific, and ‘it is certainly correct
that an appellate opinion might not supply all answers.’” (Lewis,
supra, 11 Cal.5th at p. 972.)

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appointing counsel is harmless if the record of conviction
“conclusively demonstrates” petitioner is ineligible for relief].)
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez (2020) 58 Cal.App.5th 227, 230,
review granted Mar. 10, 2021, S266652; People v. Lopez (2020)
56 Cal.App.5th 936, 949, review granted Feb. 10, 2021, S265974;
but see People v. Duke (2020) 55 Cal.App.5th 113, 123, review
granted Jan. 13, 2021, S265309.) The prosecutor and petitioner
may rely on the record of conviction or offer new or additional
evidence to meet their respective burdens. (See Gentile, supra,
10 Cal.5th at pp. 853-854; People v. Drayton (2020)
47 Cal.App.5th 965, 981.)
2. The Record of Conviction Establishes Renteria Is
Ineligible for Resentencing as a Matter of Law
The trial court instructed Renteria’s jury with CALJIC
No. 3.02, permitting Renteria to be convicted of murder under the
natural and probable consequences doctrine—a now-invalid
theory of accomplice liability for murder—if Renteria knowingly
and intentionally aided and abetted a “crime originally
contemplated” by his confederates and Velasquez’s murder “was
a natural and probable consequence of such originally
contemplated crime.” (No “originally contemplated” or target

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crime was identified in the instruction.)5 As discussed, however,
in addition to finding Renteria guilty of murder, the jury also
convicted Renteria of conspiracy to commit a crime (expressly
defined as the murder of Velasquez), which necessarily means the
jury found he had acted with the intent to kill—express malice—
in connection with Velasquez’s death: “[C]onspiracy is a specific
intent crime requiring an intent to agree or conspire, and a
further intent to commit the target crime, here murder, the object
of the conspiracy. Since murder committed with intent to kill is
the functional equivalent of express malice murder, conceptually
speaking, no conflict arises between the specific intent element of
conspiracy and the specific intent requirement for such category
of murders. Simply put, where the conspirators agree or conspire
with specific intent to kill and commit an overt act in furtherance
of such agreement, they are guilty of conspiracy to commit
express malice murder.” (People v. Swain (1996) 12 Cal.4th 593,
602; see People v. Johnson (2013) 57 Cal.4th 250, 257 [“‘[a]

5 As discussed, CALJIC No. 3.02 was among the jury
instructions Renteria attached as exhibits to this supplemental
memorandum in the superior court in support of the petition.
Both Renteria and the Attorney General have asked that we
include portions of the appellate record from People v. Renteria,
supra, B056051, in the record on appeal in the case at bar,
including the clerk’s transcript containing the full set of jury
instructions given at Renteria’s trial. We granted those requests
(Cal. Rules of Court, rule 8.340(c)) and properly consider the jury
instructions, part of the record of conviction, in assessing whether
Renteria established a prima facie case for relief under
section 1170.95, subdivision (c). (See Lewis, supra, 11 Cal.5th at
p. 971; see also People v. Soto (2020) 51 Cal.App.5th 1043, 1055,
review granted Sept. 23, 2020, S263939 [jury instructions are
part of the record of conviction].)

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conviction of conspiracy requires proof that the defendant and
another person had the specific intent to agree or conspire to
commit an offense, as well as the specific intent to commit the
elements of that offense, together with proof of the commission of
an overt act’”].)
Renteria’s jury was fully instructed on the elements of
murder, including the definitions of “malice aforethought” and
“express” malice, and as to the conspiracy count pursuant to
CALJIC No. 6.10 that, “A conspiracy is an agreement entered
into between two or more persons with the specific intent to agree
to commit the public offense of murder and with the further
specific intent to commit such offense, followed by an overt act
committed in this state by one or more of the parties for the
purpose of accomplishing the object of the agreement.” The
express malice requirement was reiterated in CALJIC No. 3.31,
“[T]he crime of conspiracy requires the specific intent to agree
and to commit murder.” Significantly, the prosecutor withdrew a
request for, and the court did not instruct with, CALJIC No. 6.11
that a member of a conspiracy is liable for the natural and
probable consequences of any act of a coconspirator to further the
object of the conspiracy. Accordingly, even if not the actual
shooter, based on the jury’s necessary findings Renteria remains
liable for Velasquez’s murder as a direct aider and abettor under
amended sections 188 and 189, making him ineligible for
resentencing relief. (Cf. People v. Beck and Cruz (2019) 8 Cal.5th
548, 645 [“Beck and Cruz were charged with conspiracy to
murder, not conspiracy to commit a lesser crime that resulted in
murder. There is thus no possibility they were found guilty of
murder on a natural and probable consequences theory”].)

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 Renteria disputes this conclusion, noting he was convicted
in 1990 and arguing, before the Supreme Court’s decisions in
People v. Cortez (1998) 18 Cal.4th 1223 and People v. Swain,
supra, 12 Cal.4th 593 (in 1996), it was not clear a conviction for
conspiracy to murder required a mental state equivalent to
deliberation and premeditation. (See, e.g., Swain, at p. 607.)
Specifically, he contends “the jury could have concluded that
Renteria conspired to commit heat of passion voluntary
manslaughter and that second degree murder was a natural and
probable consequence of that crime.”
Renteria’s abbreviated reference to the evolution of the law
of conspiracy to commit murder, even if generally accurate,6 is
irrelevant in this case. The jury was instructed that a guilty
verdict on the charge of conspiracy to commit murder required
proof beyond a reasonable doubt that Renteria specifically
intended to commit murder—express malice. In addition, as this
court explained when disagreeing with one of Renteria’s
contentions of instructional error in his direct appeal, in finding
Renteria guilty of second degree murder and not voluntary

6 In People v. Horn (1974) 12 Cal.3d 290 the Supreme Court
held, under a former version of section 182 prescribing the
punishment for conspiracy, the jury was required to determine
which felony the defendants had conspired to commit and, “if that
felony is divided into degrees, which degree of the felony they
conspired to commit.” (Horn, at p. 297.) Horn was expressly
disapproved in People v. Cortez, supra, 18 Cal.4th 1223, which
held, “[A]ll conspiracy to commit murder is necessarily conspiracy
to commit premeditated and deliberated first degree murder, and
. . . all murder conspiracies are punishable in the same manner
as murder in the first degree pursuant to the punishment
provisions of Penal Code section 182.” (Cortez, at pp. 1237-1238.)

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manslaughter, the jury necessarily rejected Renteria’s evidence of
provocation and heat of passion. Moreover, because it was not
instructed with CALJIC No. 6.11 concerning a coconspirator’s
liability for unintended acts committed in furtherance of the
conspiracy, the jury simply had no basis to find Renteria guilty of
both murder and conspiracy to murder without also finding he
acted with the intent to kill.
3. None of Renteria’s Other Contentions Requires Reversal
of the Order Denying His Petition
We agree with Renteria a probation officer’s report is not
properly considered part of the record of conviction and should
not have been considered by the superior court when deciding
whether he had made a prima facie case for section 1170.95
relief. (See People v. Burnes (2015) 242 Cal.App.4th 1452, 1458
[“[a] probation report ‘ordinarily is not part of the record of
conviction’”]; People v. Oehmigen (2014) 232 Cal.App.4th 1, 5
[same].) We also agree at an evidentiary hearing pursuant to
section 1170.95, subdivision (d), after issuance of an order to
show cause, the People must prove every element of liability for
murder under amended sections 188 and 189 beyond a
reasonable doubt, as this court held in People v. Rodriguez, supra,
58 Cal.App.5th at page 230, review granted, not simply that
substantial evidence would support a finding of guilt beyond a
reasonable doubt, as the superior court ruled and as held in
People v. Duke, supra, 55 Cal.App.5th 113, review granted. Both
of these errors are necessarily harmless, however, in light of the
undisputed fact that Renteria was convicted of conspiracy to
commit murder, which, together with the jury instructions from
his trial, established his ineligibility for relief as a matter of law.

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 Renteria’s additional argument he is entitled under the
Sixth Amendment to a jury trial on any new facts or theories of
liability asserted in opposition to his section 1170.95 petition is
equally unavailing. As this court explained in People v. Lopez
(2019) 38 Cal.App.5th 1087, 1114-1115, review granted
November 13, 2019, S258175, “‘[T]he retroactive relief
[petitioners] are afforded by Senate Bill 1437 is not subject to
Sixth Amendment analysis. Rather, the Legislature’s changes
constituted an act of lenity that does not implicate defendants’
Sixth Amendment rights.’” (Accord, People v. Lopez, supra,
56 Cal.App.5th at p. 958, review granted [“‘the Sixth Amendment
does not prohibit trial courts from relying on facts not found by a
jury in determining’ section 1170.95 eligibility”]; People v.
Howard (2020) 50 Cal.App.5th 727, 740; People v. Anthony (2019)
32 Cal.App.5th 1102, 1156; see People v. Perez (2018) 4 Cal.5th
1055, 1063-1064 [trial court may determine facts based on new
evidence regarding the petitioner’s eligibility for resentencing
under Proposition 36 because retroactive application of the
benefits from the proposition are a legislative act of lenity that
does not implicate Sixth Amendment rights: “a factual finding
that results in resentencing ineligibility does not increase the
petitioner’s sentence; it simply leaves the original sentence
intact”].)

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 DISPOSITION
The postjudgment order denying Renteria’s motion for
resentencing under section 1170.95 is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

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