People v. Salazar CA2/7

Filed 9/21/21 P. v. Salazar 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B303834

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA081564-02)
v.

MAGDALENO SALAZAR,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Robert Perry, Judge. Affirmed.
Emry J. Allen, 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, Charles S. Lee and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________
 A jury convicted Magdaleno Salazar in 1999 of first degree
murder with a true finding he had personally used a firearm and
a principal was armed with a firearm during the offense. Salazar
admitted a special-circumstance allegation that he had a prior
murder conviction; the jury returned a verdict of death at the
penalty phase of the trial; and the court imposed that sentence.
The Supreme Court affirmed the judgment. (People v. Salazar
(2016) 63 Cal.4th 214.)
In September 2019 Salazar filed a petition for resentencing
under Penal Code section 1170.95.1 The superior court, without
first appointing counsel or inviting briefing, summarily denied
the petition, finding that Salazar was “an actual killer” and had
not made a prima facie showing he was entitled to relief.2
Because the record of conviction establishes Salazar is ineligible
for resentencing as a matter of law, any errors committed by the
superior court were harmless. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Salazar’s Trial for Murder
The Supreme Court’s opinion affirming Salazar’s conviction
and death sentence summarizes the evidence presented at trial.
(People v. Salazar, supra, 63 Cal.4th at pp. 221-224.) In the early
morning of July 25, 1993 Kathy Mendez and a friend met Salazar
and Enrique Echeverria at a fast food restaurant. Salazar was
wearing a white shirt; Escheverria a black shirt. Salazar,
Escheverria and Mendez were members of the Harpys criminal
street gang. Salazar drove the four of them to another fast food

1 Statutory references are to this code.
2 The superior court also ruled section 1170.95 is
unconstitutional.

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restaurant, the Yoshinoya Beef Bowl, on the fringe of Harpys
territory that was sometimes frequented by members of other
gangs.
Mendez heard Salazar and Echeverria say they needed to
“take care of the neighborhood,” and should not be “caught
slipping.” This meant they intended to control the restaurant as
gang territory and not be caught unaware by rival gang
members.
While Mendez waited in a line of customers, Salazar and
Echeverria left the restaurant and stood just outside. As the door
opened, Mendez heard Salazar tell Echeverria to get the “cuete,”
a slang term for a gun. Echeverria retrieved something from the
car and put it in his waistband. Mendez then saw a shirtless
man walk past the restaurant. Salazar and Echeverria
confronted the man and began wrestling with him. Mendez
heard gunshots and saw Salazar shooting in the direction of the
Au Rendezvous cafe next door.
When the shooting stopped, Mendez went outside. Salazar
was half-carrying Echeverria toward the car. Salazar was
holding what looked like a nine-millimeter pistol. Salazar helped
Echeverria into the car and drove away. Mendez went into the
cafe where she saw the shirtless man lying face down. There was
a lot of blood.
Emilio Antelo, the security guard at the Beef Bowl, was
standing outside, between the Beef Bowl and the cafe, when a car
pulled up and parked. A teenaged passenger got out of the car
and entered the Beef Bowl. As the driver approached, Antelo
prepared to stop him because the Beef Bowl’s policy required
customers to wear shirts. Antelo then heard a metallic sound,
turned and saw a man cocking a pistol. The gunman walked past

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Antelo and toward the shirtless man. Antelo heard another
pistol being cocked and saw a second gunman approach the
shirtless man, who appeared to be unarmed. Both guns were
semiautomatic pistols. The gunmen said something to the
shirtless man, which Antelo could not understand. Antelo went
inside the Beef Bowl and then heard gunfire. When the shooting
stopped, he told the cook to call the police, went outside and saw
the shirtless man on the ground.
A third eyewitness, Patrick Turner, was walking past the
Beef Bowl on his way to Au Rendezvous. Turner saw a small car
drive up and park. The passenger went into the Beef Bowl, but
the driver was confronted by two men, one wearing a white shirt,
the other a black shirt. They asked him, “Don’t I know you from
somewhere?” The three men began arguing and scuffling. They
wrestled with each other, moving into the cafe. The man in the
black shirt stood in the doorway shooting. He and the man in
white, who was limping, then went to a car and drove off. The
black-shirted man was in the driver’s seat.
Fifteen bullet casings were recovered, both inside and
outside the cafe. Twelve were nine-millimeter, fired from the
same gun; three were .25 caliber, fired from another weapon.
Enrique Guevara, the shirtless man, had been shot nine times.
There was no soot or stippling around the wounds, indicating
they had been inflicted from a distance greater than two feet.
Echeverria testified for the defense. He told the jury he
had shot and killed Guevara, had been convicted of the killing
and was currently in prison. He said he and Salazar were
standing outside the Beef Bowl when a car drove by. The
occupants were “staring us down” and “looked like gang-bangers.”
Echeverria went to his car, retrieved a nine-millimeter

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automatic, cocked it and placed it in his waistband. The other
car parked, and the passenger went into the Beef Bowl. Salazar
followed him inside. The driver, who was shirtless, appeared to
be “under the influence.” When the driver got out of the car, he
displayed a .25-caliber automatic firearm and said something to
Echeverria including the word “Trece,” which Echeverria took as
a gang reference. Then the man began shooting. Echeverria said
he was shot three times. As Echeverria reached for his gun, his
assailant came closer and shot him three more times. Echeverria
grappled with the man and fired all 14 rounds in his clip as the
two wrestled. Echeverria fell on top of his attacker in the cafe.
Salazar appeared and helped him to the car. Echeverria had
dropped his gun, which Salazar retrieved. The parties stipulated
that Guevara had gunshot residue particles on his hands.
2. Verdict, Sentence and Appeal
The jury convicted Salazar of first degree murder (§ 187)
and found true the allegations Salazar had personally used a
firearm during the offense (§ 12022.5, subd. (a)) and a principal
had been armed with a firearm during the offense (§ 12022,
subd. (a)(1)). Following the guilty verdict Salazar admitted the
special-circumstance allegation that he had previously been
convicted of first degree murder (§ 190.2, subd. (a)(2)). After trial
of the penalty phase the jury recommended a sentence of death.
The trial court, after reviewing the evidence relating to
aggravating and mitigating circumstances, found the aggravating
factors greatly outweighed the mitigating factors, determined the
appropriate penalty was death and sentenced Salazar to death.
The Supreme Court affirmed the judgment in its entirety.
(People v. Salazar, supra, 63 Cal.4th at p. 221.) As pertinent to
the issue presented by Salazar’s current appeal, the Court

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rejected Salazar’s argument the evidence was insufficient to
establish his guilt of first degree murder, including his
contentions the evidence was insufficient to show the killing was
not justified by Echeverria’s lawful self-defense or Salazar’s
defense of Echeverria; the evidence of malice was insufficient
because the prosecution failed to disprove that he had acted in a
sudden quarrel, under the heat of passion, in unreasonable self-
defense or in mutual combat; and the evidence was insufficient to
establish deliberation and premeditation. (Id. at pp. 242-245.)
With respect to the proof of malice, the Court stated, “[T]he
evidence strongly supported a finding that defendant acted as a
deliberate aggressor in the confrontation.” (Id. at p. 244.)
More generally, the Supreme Court explained, “The
prosecution’s theory was that Guevara had managed to wrestle
the .25-caliber weapon away from Echeverria and shoot him
several times, explaining the soot found on Guevara’s hands.
Thereafter, defendant shot at both men from the doorway of the
Au Rendezvous. This theory was consistent with the shell casing
evidence. It was supported by Mendez’s testimony that defendant
had a nine-millimeter weapon and Echeverria had his gun when
they confronted Guevara. It was also consistent with Antelo’s
testimony that the men who approached Guevara outside the
Beef Bowl carried guns while Guevara did not.” (People v.
Salazar, supra, 63 Cal.4th at p. 244.)
3. Salazar’s Section 1170.95 Petition for Resentencing
On September 27, 2019 Salazar, representing himself, filed
a petition for resentencing under section 1170.95. Checking
boxes on the printed form petition, Salazar declared under
penalty of perjury that he had been convicted of first or second
degree murder pursuant to the felony-murder rule or the natural

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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 No. 1437 (2017-2018
Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437). Salazar
requested appointment of counsel during the resentencing
process.
The superior court summarily denied the petition on
November 4, 2019 without appointing counsel for Salazar or
inviting briefing by the prosecutor or Salazar. Briefly
summarizing the commitment offense, the court stated, “A little
after 2:30 a.m. on July 25, 1993, Salazar and a fellow gang
member confronted a rival gang member outside the Yoshinoya
Beef Bowl at Figueroa and 30th Streets in Los Angles and shot
him to death.” The court then stated, “As an actual killer in the
1993 murder, Salazar is ineligible for sentencing relief under
Penal Code §§ 1170.95 and 189(e)(3).”3

3 The superior court also suggested in its order denying
Salazar’s petition that his conviction for a 1991 murder, which
included a robbery-murder special-circumstance finding, was not
subject to resentencing under section 1170.95. Salazar and the
Attorney General agree that crime is not relevant to an analysis
of Salazar’s entitlement to resentencing relief for his conviction of
the 1993 murder of Guevara.
As an independent ground for denying the petition, the
court ruled Senate Bill 1437 and section 1170.95 are
unconstitutional. The Attorney General does not contend Senate
Bill 1437 and section 1170.95 are unconstitutional and does not
argue on appeal that we should affirm the order denying
Salazar’s petition on that ground.

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 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.)
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

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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, supra,
11 Cal.5th 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 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

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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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 Error in Denying Salazar’s Petition Without
Appointing Counsel Was Harmless
In People v. Lewis, supra, 11 Cal.5th 952 the Supreme
Court, resolving a conflict among the courts of appeal and
agreeing with the analysis in People v. Cooper (2020)
54 Cal.App.5th 106, review granted November 10, 2020, S264684,
held, once a petitioner files a facially sufficient petition
requesting counsel, the superior court must appoint counsel
before performing any prima facie review under section 1170.95,
subdivision (c): “[P]etitioners who file a complying petition
requesting counsel are to receive counsel upon the filing of a
compliant petition.” (Lewis, at p. 963.) Because Salazar checked
all the necessary boxes on his form petition, the superior court
erred by denying his petition without first appointing counsel.
The Lewis Court, however, also held a superior court’s
failure to appoint counsel to represent a petitioner when

10
assessing whether he or she has made a prima facie showing of
entitlement to relief pursuant to section 1170.95, subdivision (c),
is state law error only, reviewable for prejudice under the
harmless error standard of People v. Watson (1956) 46 Cal.2d
818. (Lewis, supra, 11 Cal.5th at pp. 957-958, 973-974.) The
Court explained, “There is no unconditional state or federal
constitutional right to counsel to pursue collateral relief from a
judgment of conviction. [Citations.] However, we have held that
‘if a [habeas] petition attacking the validity of a judgment states
a prima facie case leading to issuance of an order to show cause,
the appointment of counsel is demanded by due process concerns.’
[Citation.] When ‘an indigent petitioner has stated facts
sufficient to satisfy the court that a hearing is required, his claim
can no longer be treated as frivolous and he is entitled to have
counsel appointed to represent him.’ [Citations.] [¶] For the
same reason, a petitioner is not constitutionally entitled to
counsel at the outset of the subdivision (c) stage of the section
1170.95 petitioning process. [Citations.] At this point, the
petitioner has not yet ‘stated facts sufficient to satisfy the court
that a hearing is required,’ but merely endeavors to do so.” (Id.
at pp. 32-33.)
As discussed in the following section, the record of
conviction establishes Salazar is ineligible for relief under
section 1170.95 as a matter of law. Because there is no
reasonable probability Salazar would have obtained a more
favorable result if counsel had been appointed and given the
opportunity to file a memorandum supporting the petition, the
court’s error in failing to appoint counsel was harmless. (See
People v. Watson, supra, 46 Cal.2d at p. 836 [an error violating
only California law is harmless unless “it is reasonably probable

11
that a result more favorable to the appealing party would have
been reached in the absence of the error”].)
3. Salazar Is Ineligible for Resentencing as a Matter of Law
Contending the superior court erred in concluding he had
failed to make a prima facie showing of eligibility for
resentencing under section 1170.95, Salazar emphasizes the
court found he was “an actual killer,” not “the actual killer,” and
explains the forensic evidence at trial was unclear whether the
shots he had fired or those fired by Echeverria caused Guevara’s
death. “Under these facts,” he argues, “it may be that appellant
was found guilty as an aider and abettor to the actual killer but
was not the actual killer.” That may be, but under either
scenario Salazar is ineligible as a matter of law for resentencing
under section 1170.95: “Senate Bill 1437 does not eliminate
direct aiding and abetting liability for murder because a direct
aider and abettor to murder must possess malice aforethought.”
(Gentile, supra, 10 Cal.5th at p. 848.)
Salazar also suggests the jury might have found he aided
and abetted not Guevara’s murder, but an assault on Guevara,
the natural and probable consequences of which was Guevara’s
murder by Echeverria, a theory of accomplice liability for murder
eliminated by Senate Bill 1437. Salazar explains his trial took
place before the Supreme Court in People v. Chiu (2014)
59 Cal.4th 155, 158-159 (Chiu) held an aider and abettor may not
be convicted of first degree premeditated murder under the
natural and probable consequences doctrine and, therefore, his
conviction could have been based on vicariously attributing to
him the mental state of the actual killer (Echeverria).
The jury in Salazar’s case, however, was not instructed he
could be found guilty of murder under the natural and probable

12
consequences doctrine,5 and the Supreme Court’s opinion
affirming his conviction for first degree premeditated murder
confirms the case was tried on the theory that both Salazar and
Echeverria shot at Guevara with the intent to kill him,
regardless of which one of the two men fired the fatal shots.
Moreover, although Salazar’s trial took place before Chiu
prohibited first degree premeditated murder convictions under
the natural and probable consequences doctrine, the Supreme
Court affirmed the judgment in his case two years after it had
decided Chiu. It is inconceivable the Supreme Court would have
affirmed a death sentence in a case in which there was a
potential Chiu error.
In sum, the record of conviction indisputably demonstrates
Salazar was convicted of Guevara’s murder as the actual shooter
or as a direct aider and abettor of the actual shooter, acting with

5 On our own motion we augmented the record on appeal
with the jury instructions from the guilt phase of Salazar’s trial.
(See Cal. Rules of Court, rule 8.340(c).) The court instructed the
jury, using CALJIC No. 3.00, that one who aids and abets a crime
is equally guilty of the offense as those who directly and actively
commit the act constituting the crime and, using CALJIC
No. 3.01, that an aider and abettor must act with knowledge of
the unlawful purpose of the perpetrator and with the intent or
purpose of encouraging or facilitating the commission of the
crime. The court did not instruct with CALJIC No. 3.02,
Principals—Liability for Natural and Probable Consequences,
which stated in 1999 that one who aids and abets another in the
commission of a crime “is not only guilty of that crime, but is also
guilty of any other crime committed by a principal which is a
natural and probable consequence of the crime originally aided
and abetted.” (CALJIC No. 3.02 (1997 rev.).)

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malice aforethought in either case. As such, he could still be
convicted of murder notwithstanding Senate Bill 1437’s
amendments to sections 188 and 189, and he is ineligible as a
matter of law for resentencing under section 1170.95. The error
in not appointing counsel before denying his petition was
harmless.
DISPOSITION
The postjudgment order denying Salazar’s petition for
resentencing is affirmed.

PERLUSS, P. J.
We concur:

SEGAL, J.

FEUER, J.

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