People v. Fajardo CA2/6

Filed 9/23/21 P. v. Fajardo CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B301880
(Super. Ct. No. F491809)
Plaintiff and Respondent, (San Luis Obispo County)

v.

MARIA DEL CARMEN
GRANADOS FAJARDO,

Defendant and Appellant.

Maria Del Carmen Granados Fajardo appeals an order
denying her petition for resentencing filed under Penal Code
section 1170.95 following her prior conviction of second degree
murder.1 (§ 187, subd. (a).) The trial court did not issue an order
to show cause for an evidentiary hearing. We conclude, among
other things, that the trial court did not err by denying the
petition. We affirm.

1 All statutory references are to the Penal Code.
 FACTS
Victor Sanchez was Fajardo’s former boyfriend. In 2012,
Fajardo asked David Hernandez to beat up Sanchez and she
offered to pay him for this plan. Crystal Garner and Joseph
Villareal became involved in this plot. They planned to break
Sanchez’s leg and injure his face. (People v. Fajardo (June 30,
2016, B261612) [nonpub. opn.].)
Fajardo said she would not pay unless the assailants
provided proof of the assault. The assailants planned to take
Sanchez’s wallet and cell phone as proof.
Pursuant to the plan, Garner invited Sanchez to meet her
at a bar. Sanchez accepted the invitation. Garner and Sanchez
left the bar in Sanchez’s car, with Garner driving. Hernandez
and Villareal followed in Hernandez’s car. Garner pulled off the
road and Hernandez used his car to block Sanchez’s car. (People
v. Fajardo, supra, B261612.)
Villareal got out of Hernandez’s car and hit the top of
Sanchez’s car with a crowbar. Villareal screamed at Sanchez to
get out of the car. He pulled Sanchez out of the car and struck
him numerous times with the crowbar. Garner screamed for
Villareal to get Sanchez’s wallet and cell phone. Sanchez tried to
hand over his wallet, but Villareal continued to beat him. Garner
saw a light moving in their direction. She took Sanchez’s wallet
and cell phone, and she and Villareal got into Hernandez’s car
and left Sanchez at the scene. (People v. Fajardo, supra,
B261612.)
Hernandez drove to Fajardo’s house and delivered
Sanchez’s wallet and cell phone. Fajardo gave Hernandez $6,000.
Hernandez gave Villareal and Garner $1,000.

2
 About two weeks after the assault, Fajardo visited
Hernandez at his house. She complained that the assault on
Sanchez was inadequate because the agreement had been to
break Sanchez’s leg. Fajardo offered Hernandez $25,000 to “take
[Sanchez] out.” Hernandez hired three men to shoot Sanchez in
the kneecap. Sanchez was shot and killed at his home. (People v.
Fajardo, supra, B261612.)
Fajardo was convicted by a jury of second degree murder
(§ 187, subd. (a)), robbery (§ 211), and assault with a deadly
weapon (§ 245, subd. (a)(1)). She was sentenced to an aggregate
prison term of 21 years to life. On June 30, 2016, we affirmed the
conviction. (People v. Fajardo, supra, B261612.)
On February 8, 2019, Fajardo filed a petition for
resentencing under section 1170.95. She checked a box on the
form petition that said, “I was convicted of 2nd degree murder
under the natural and probable consequences doctrine or under
the 2nd degree felony murder doctrine and I could not now be
convicted of murder because of changes to Penal Code § 188,
effective January 1, 2019.” She did not state any evidentiary
facts or cite to any portions of the record.
The People filed an opposition claiming Fajardo did not fall
within section 1170.95 because she was a major participant in
the underlying felony and acted with reckless indifference to
human life. She “abetted, counseled, [and] commanded” the
actual killer and acted with malice. (Emphasis omitted.)
The trial court denied the petition and did not issue an
order to show cause for an evidentiary hearing. It found,
“Fajardo was a principal in the commission of the crime.
Consequently, I don’t believe that she would be entitled to relief
under [section] 1170.95. I’m further making a finding that she

3
was a principal that acted with malice aforethought based on the
pleadings. So I am going to deny the petition.”
DISCUSSION
Denying the Section 1170.95 Petition
Fajardo and the People contend the trial court erred by
prematurely denying her section 1170.95 petition without issuing
an order to show cause and conducting an evidentiary hearing.
We disagree.
The origin of section 1170.95 was the Governor’s signing of
Senate Bill No. 1437 in 2018. Senate Bill No. 1437 “amend[s] 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 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), italics added; People v.
Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417.)
A defendant convicted of murder may file a petition under
section 1170.95 alleging he or she “could not be convicted of first
or second degree murder” because of changes to the law required
by Senate Bill No. 1437. (People v. Gutierrez-Salazar, supra, 38
Cal.App.5th at p. 417.) “A trial court receiving a petition under
section 1170.95 ‘shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section.’ (§ 1170.95, subd. (c).)”
(Ibid.) “If the petitioner has made such a showing, the trial court
‘shall issue an order to show cause.’ ” (Ibid.) The trial court must
then hold a hearing to determine whether to vacate the murder
conviction and resentence the petitioner. (Ibid.)

4
 At that hearing the People’s burden of proof is to show the
petitioner is ineligible for section 1170.95 relief. (§ 1170.95, subd.
(d)(3).) “The prosecutor and the petitioner may rely on the record
of conviction or offer new or additional evidence to meet their
respective burdens.” (Ibid.)
There are two stages involved in a section 1170.95 petition.
If a prima facie showing is made for relief in the first stage, the
trial court proceeds to the second stage and issues an order to
show cause and the case proceeds to an evidentiary hearing.
Where the prima facie showing is not made in the first stage, the
court may deny the petition.
Many courts have held that where the petitioner is
obviously ineligible for section 1170.95 relief, the trial court may
summarily dismiss the petition. (People v. Cervantes (2020) 44
Cal.App.5th 884, 887; People v. Verdugo (2020) 44 Cal.App.5th
320, 329-330, review granted Mar. 18, 2020, S260493; People v.
Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18,
2020, S260410.)
Here the parties have not shown trial court error by the
decision not to issue an order to show cause for a second stage
section 1170.95 evidentiary hearing.
Senate Bill No. 1437 did not change the law for the benefit
of defendants convicted of murder who are major participants in
the underlying felony who acted with reckless indifference to
human life. (People v. Gutierrez-Salazar, supra, 38 Cal.App.5th
at pp. 416-417.) Defendants convicted of murder who are not the
actual killers but whose actions show intent to kill the victim are
not entitled to section 1170.95 relief. (People v. Cooper (2020) 54
Cal.App.5th 106, 112-113, review granted Nov. 10, 2020,
S264684.) Defendants who commit a “murder for hire” by paying

5
someone to kill a victim are also not eligible. (People v. Nguyen
(2020) 53 Cal.App.5th 1154, 1162; id. at p. 1167.)
A defendant convicted of murder under the natural and
probable consequences doctrine must make a prima facie showing
that he or she could not now be convicted of murder under
current law in order to obtain section 1170.95 relief. (People v.
Garcia (2020) 57 Cal.App.5th 100, 105, 114-115, review granted
Feb. 10, 2021, S265692.)
Fajardo did not make a prima facie showing. The facts
cited in our appellate decision show that Fajardo solicited the
crime that ultimately caused Sanchez’s death. She twice solicited
and directed the violent assault on him. She acted with malice
and was the major participant in this plan that resulted in his
death. She acted with a reckless indifference to human life.
Without Fajardo’s plan, Sanchez would not have been the target
of the crime that caused his death. It is undisputed that Fajardo
offered Hernandez $25,000 to “take [Sanchez] out.” (People v.
Fajardo, supra, B261612.) The People in their opposition to the
section 1170.95 petition cited to facts in the record to show she
paid the murderers after they killed Sanchez.
Fajardo’s conduct falls outside the relief provisions in
Senate Bill No. 1437. (People v. Gutierrez-Salazar, supra, 38
Cal.App.5th at pp. 416-417; see also People v. Garcia, supra, 57
Cal.App.5th at pp. 105, 114.)
The Garcia Decision
In People v. Garcia, the defendant was convicted of second
degree murder in 1998 “under the natural and probable
consequences doctrine.” (People v. Garcia, supra, 57 Cal.App.5th
at p. 105.) During a gang fight, Garcia told another gang
member to stick the victim with a knife. That other gang

6
member killed the victim. Garcia filed a section 1170.95 petition.
He alleged that 1) he did not act with intent to kill or abet the
actual killer; 2) he was not a major participant in the murder; 3)
he did not act with reckless indifference to human life; and 4) he
could not presently be convicted of murder. The trial court
denied his section 1170.95 petition on the ground that Garcia had
failed to make a prima facie showing for the issuance of an order
to show cause. We affirmed and held, “Appellant’s allegations
conflict with the evidence presented at trial. As we shall explain,
the Legislature surely did not intend that appellant would be
entitled to an evidentiary hearing to retry the underlying
criminal case against him.” (Garcia, at p. 105.)
We said, “Section 1170.95 clearly and unambiguously
requires a prima facie showing that the petitioner ‘could not be
convicted of . . . second degree murder because of changes to
Section 188 . . . .’ ” (People v. Garcia, supra, 57 Cal.App.5th at
p. 114.) “In view of the evidence that appellant directed [the
actual killer] to ‘stick’ the victim with a knife, as a matter of law
appellant could be convicted of second degree murder as a direct
aider and abettor despite the changes to section 188.” (Ibid.)
“We affirm the order denying his petition.” (Id. at p. 105.)
Fajardo’s case is similar to Garcia. But Fajardo, in a more
calculated and deliberate fashion, initiated the plan to attack the
victim, and on more than one occasion offered money to solicit the
attacks. Garcia asked an associate to use a knife; Fajardo paid
associates to “take [the targeted victim] out.” Here, as in Garcia,
Fajardo “could be convicted of second degree murder as a direct
aider and abettor despite the changes” required by Senate Bill
No. 1437. (People v. Garcia, supra, 57 Cal.App.5th at p. 114.)

7
 Other Factors
There are other relevant factors that support the finding
that Fajardo was a major participant who acted with reckless
indifference to human life. First, the plan to attack was Fajardo’s
“brainchild.” (People v. Douglas (2020) 56 Cal.App.5th 1, 10.)
Second, as the People note, Fajardo was the “ringleader.” “[A]
ringleader is a major participant.” (People v. Williams (2015) 61
Cal.4th 1244, 1281.) Her participation was significant because
she both directed and paid to facilitate the attacks on her victim.
Without her participation, there would not have been an attack
on Sanchez. Third, the use of violence was not a surprise, but
rather the intended result. (Douglas, at pp. 10-11.) Fajardo
specifically hired people to “take [Sanchez] out.”
Defendants convicted of murder may use various factors to
support their claims for section 1170.95 relief when their
participation involves “minor culpability.” For example, “the
getaway driver who did not know how dangerous the plan was,”
or “the robbery mastermind who took special steps to avoid
violence and gunplay.” (People v. Douglas, supra, 56 Cal.App.5th
at p. 9, italics added.) But such factors do not apply to Fajardo.
She knew the plan because she created it, and she specifically
took steps to cause violence to the victim.
In In re Scoggins (2020) 9 Cal.5th 667, our Supreme Court
held there was no ground to find reckless indifference to human
life in a case of a defendant who planned an unarmed assault and
robbery where one of his associates at the crime scene
unexpectedly used a gun and shot a victim to death. In making
this determination, the court considered several factors. It noted
the defendant did not “know that a gun would be used during the
felony.” (Id. at p. 677.) He planned the assault and robbery of

8
the victim “to be unarmed.” (Ibid.) The defendant had “no
reason to suspect that his accomplices were armed.” (Id. at
p. 679.) The defendant did not know his associates were likely to
use lethal force. (Id. at p. 681.) These favorable Scoggins factors
do not apply here. Fajardo paid money to “take [Sanchez] out.”
When defendants plan crimes, a relevant factor is whether
the plan has “a particularly high risk of violence.” (In re
McDowell (2020) 55 Cal.App.5th 999, 1013.) Here the plan
involved more than the risk of violence, it required violence to be
inflicted. Did the defendant take “efforts to minimize the risks of
the violence [during the felony]”? (People v. Clark (2016) 63
Cal.4th 522, 621.) Here, the opposite. After the first attack,
Fajardo paid more money to increase the risk of violence for her
victim.
A relevant question is whether the defendant was aware “of
particular dangers posed by the nature of the crime.” (People v.
Banks (2015) 61 Cal.4th 788, 803.) Here the crime targeted a
specific victim with violence and Fajardo’s direction to “take
[him] out.” Other Banks factors are not favorable for Fajardo.
For example, what “awareness did the defendant have” regarding
the “past experience or conduct of the other participants”? (Ibid.)
Fajardo had used Hernandez for the specific purpose of violently
attacking Sanchez on two occasions. Finally, “[w]hat did the
defendant do after lethal force was used”? (Ibid.) Fajardo paid
the murderers as required by her plan.
The Hearing on the Petition
The People claim the trial court erred by making its
findings at a first stage hearing. They contend it should have
waited until a second stage section 1170.95 hearing to make

9
findings. But given the facts of this case, the distinction is
meaningless.
This was technically a first stage section 1170.95
proceeding because the trial court did not issue an order to show
cause. But the nature of this proceeding had elements akin to a
second stage evidentiary proceeding. The People’s opposition to
the petition included a request for the court to take judicial notice
of the “charging document(s) and court record(s) contained in the
court file.” They included citations to facts from the record of
conviction and citations to the reporter’s transcript of the trial
testimony. They cited to trial transcripts to show that after the
killing Fajardo paid the murders who killed Sanchez. The People
set forth a complete statement of facts from the record of
conviction to support a murder conviction under current law.
Fajardo’s counsel filed a 10-page brief in response. But
there was no cite to evidence to contest the facts in the record of
conviction. There was no showing that the facts cited by the
People from the trial transcripts were incorrect. Instead,
Fajardo’s counsel agreed that the facts the People cited from the
record of conviction “set[] forth the factual summary of the case.”
(Italics added.) Because of that stipulation, Fajardo has not
shown that the trial court lacked the authority to make its
rulings given this undisputed factual record.
At the hearing the trial court said, “I’ve also reviewed the
unpublished opinion by the Second Appellate District, Division
Six, filed on June 30th, 2016, regarding the facts that the Court
relied upon in determining that the judgment would be affirmed.”
Fajardo’s counsel stated, “I’m prepared to submit it” on the
“pleadings and the record that the court has recited for the
record.” (Italics added.) In his brief Fajardo’s counsel said the

10
court may rely on the record of conviction and the appellate
opinion is part of the “record of conviction.” At the hearing
Fajardo’s counsel made no request to introduce evidence to
respond to the People’s evidence, and he made no offer of proof.
(People v. Perez (2020) 54 Cal.App.5th 896, 907, review granted
Dec. 9, 2020, S265254 [denial of petition upheld; defendant did
not make an offer of proof of the evidence he could provide].) At
the hearing Fajardo’s counsel did not cite any facts from the
record of conviction, or otherwise, to make a prima facie showing
for section 1170.95 relief.
The trial court could reasonably find that the People had
met the same burden they would need to meet at a second stage
hearing to show section 1170.95 ineligibility, the defense did not
make a prima facie showing, and consequently holding another
hearing would not change the result.
Moreover, the suggestion the trial court acted prematurely
is refuted by the record which shows it was patient and afforded
Fajardo an extensive opportunity to present her case. This was
far from a summary proceeding. Fajardo filed her petition on
February 8, 2019. The court held a hearing on Fajardo’s petition
on February 26, 2019, and appointed counsel for her. The People
filed a motion to dismiss the petition on February 27, 2019,
where they raised the argument that Senate Bill No. 1437 was
unconstitutional.
The trial court held hearings on the constitutional issue on
March 27, April 15, and April 29. After resolving the
constitutional issue against the People, the court held a June 10
hearing to set a briefing schedule on the merits of Fajardo’s
petition. At a July 29 hearing, the court granted a request for a
continuance sought by Fajardo’s counsel. At an August 26

11
hearing, the court granted another continuance requested by
Fajardo’s counsel. The hearing on the petition took place on
September 18. More than seven months elapsed between the
filing of the petition and the hearing. This gave Fajardo ample
time to prepare for the September 18 hearing.
Other Issues
The parties suggest that Fajardo’s check mark on a
conclusory allegation in her section 1170.95 petition form, by
itself, was sufficient to require the issuance of an order to show
cause for a second stage evidentiary hearing. They suggest the
trial court may not look to the record of conviction. Our Supreme
Court disagrees. (People v. Lewis (2021) 11 Cal.5th 952.)
The trial court may consider the record of conviction to
determine whether the defendant “qualifies under the sentencing
scheme at issue.” (People v. Woodell (1998) 17 Cal.4th 448, 457.)
In addition to stating the statutory requirements of a section
1170.95 petition, the defendant must also make a sufficient
prima facie showing for relief. (Garcia, at p. 115.) That did not
occur here. Moreover, the parties’ theory would undermine the
goal and operation of section 1170.95.
In interpreting a statutory scheme such as section 1170.95,
we must “consider the statute read as a whole” and “avoid an
interpretation that would lead to absurd consequences.” (People
v. Jenkins (1995) 10 Cal.4th 234, 246.) If simply checking a box
on the section 1170.95 form petition automatically entitles the
petitioner to a second stage evidentiary hearing, in every case
there will be a second stage evidentiary hearing. The Legislature
could not have intended that result. It would leave no role for a
trial court to determine a prima facie case. It would mean the
court could have the clerks check to see if a box was checked on

12
the petition form, and then automatically schedule a second stage
evidentiary hearing without the need of any judicial
determination. Such a result would render the first stage of the
section 1170.95 procedure to be meaningless.
In People v. Garcia, supra, 57 Cal.App.5th at page 118, we
held, “In determining whether a petitioner has made a prima
facie showing of entitlement to relief under section 1170.95, the
courts should not ignore the evidence in the record of conviction
that shows the petitioner is ineligible for relief.” We said, “[I]n
determining whether the petitioner has made a prima facie
showing of entitlement to relief, the court may consider the
record of conviction.” (Id. at p. 111.) “ ‘A court of appeal opinion
. . . is part of the appellant’s record of conviction.’ ” (Ibid.)
The dissent contends we are ignoring People v. Lewis. But
in Lewis the court said, “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.” (People v. Lewis, supra, 11
Cal.5th at p. 971, italics added.) There is a distinction between
judicial fact-finding and a consideration of the facts in the record
of conviction. The dissent conflates the two. The facts we cite
from the record here are uncontradicted.
Some of the dissent’s analysis could apply to a typical
section 1170.95 first stage case. But this is not the typical case.
The dissent cites People v. Rivera (2021) 62 Cal.App.5th 217, 230,
review granted June 9, 2021, S268405, stating, “ ‘ “[A]bsent a
record of conviction that conclusively establishes that the
petitioner engaged in the requisite acts and had the requisite
intent [for a murder conviction under current law], the trial court
should not question [the petitioner’s] evidence” ’ in the first stage

13
review.” (Italics added.) But, as shown by the record of this
section 1170.95 proceeding, Fajardo did not present any evidence
and the record of conviction conclusively established guilt based
on uncontradicted and stipulated facts.
The dissent claims the trial court erred because this
petition was denied without a second stage evidentiary hearing.
But this assumes that Fajardo made the required prima facie
showing for section 1170.95 relief. The unique procedural facts of
this case resulted in an extended proceeding involving multiple
hearings over several months and extensive briefing. Fajardo had
seven months to gather evidence to prepare a prima facie showing
for section 1170.95 relief.
At the final section 1170.95 hearing, Fajardo’s counsel did
not make an offer of proof, did not state defensive facts, did not
make a prima facie showing, and did not object to the statement
of facts the People relied on from the record of conviction.
Instead, her counsel stipulated that those facts constituted the
“factual summary of the case.” The trial court is not obligated to
order a hearing to find facts to which the parties have stipulated.
Moreover, one of those uncontested facts, which the dissent
fails to highlight, was that Fajardo paid the murderers after the
murder. The dissent has not shown how the Legislature could
have intended that a murder for hire could fall within any of the
eligible categories for section 1170.95 relief.
The dissent claims the substantial evidence standard
articulated for section 1170.95 review in People v. Garcia, supra,
57 Cal.App.5th 100 is incorrect and only the Rivera standard
should apply. But assuming arguendo that the dissent is correct,
that would not change the result in this case. The issue here is

14
not merely the presence of substantial evidence, it is the presence
of a record of uncontradicted evidence.
DISPOSITION
The order denying the section 1170.95 petition is affirmed.
NOT TO BE PUBLISHED.

GILBERT, P. J.
I concur:

YEGAN, J.

15
TANGEMAN, J., Dissenting:
I dissent. I agree with appellant and the Attorney General
that the result reached by the majority is wrong. Where, as here,
a petition is facially sufficient to set forth a petitioner’s
entitlement to relief, the court “shall issue an order to show
cause.” (Pen. Code,2 § 1170.95, subd. (c), italics added.) Our
Supreme Court recently held that subdivision (c) means what it
says—that “shall” imposes a mandatory duty. (People v. Lewis
(2021) 11 Cal.5th 952, 963 (Lewis).) But that wasn’t done here.
Appellant, with the assistance of counsel, properly
completed her petition for resentencing. Nothing more was
required at this first stage. Her petition being facially sufficient,
appellant was not required to “state . . . evidentiary facts or cite
to . . . portions of the record” in her petition, as suggested by the
majority (maj. opn. ante, at p. 3). (Lewis, supra, 11 Cal.5th at p.
971.) Instead, it was incumbent upon the trial court to issue an
order to show cause.
The pleadings and jury instructions allowed the jury to
return a guilty verdict against appellant under alternative
theories of a direct aider and abettor to murder or pursuant to
the natural and probable consequences doctrine. “Because the
jury returned a general verdict, we cannot exclude the possibility
that [appellant’s] jury found [appellant guilty of murder] based
solely on a theory that [s]he aided and abetted [assault] and that
[the victim’s] death occurred during the commission of that
offense.” (People v. Secrease (2021) 63 Cal.App.5th 231, 246,
review granted June 30, 2021, S268862; People v. Drayton (2020)
47 Cal.App.5th 965, 968 (Drayton).)

2 Undesignated statutory references are to the Penal Code.
 Accordingly, we cannot presume, as the majority does here,
that appellant shared her confederates’ “murderous intent.”
(Secrease, at p. 247.) Doing so without issuing an order to show
cause and conducting an evidentiary hearing constitutes
impermissible factfinding, which is strictly prohibited at the first
stage review. (People v. Clayton (2021) 66 Cal.App.5th 145, 153
(Clayton).) While the trial court may consider the underlying
record of conviction, it must accept petitioner’s factual allegations
as true unless the record affirmatively and unequivocally shows
that petitioner is ineligible for relief. (Lewis, supra, 11 Cal.5th at
pp. 970-972.) Most importantly here, “[i]n reviewing any part of
the record of conviction [for purposes of determining eligibility], a
trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’ [Citation.]”
(Id. at p. 972.)
Here, the record of conviction establishes only that
appellant was found guilty of murder as a natural and probable
consequence of her direction to (and payment for) others to
commit a felonious assault on the victim. Under prior law, this
was sufficient to support a murder conviction. (People v. Gentile
(2020) 10 Cal.5th 830, 847.) But Senate Bill No. 1437 (2017-2018
Reg. Sess.) changed the law by abolishing this theory of
culpability for a murder conviction. (Gentile, at p. 849.) Now, “to
be convicted of murder, a principal in a crime shall act with
malice aforethought. Malice shall not be imputed to a person
based solely on his or her participation in a crime.” (§ 188, subd.
(a)(3).) In other words, “Senate Bill 1437 bars a conviction for
second degree murder under the natural and probable
consequences theory.” (Gentile, at p. 839.)

2
 If a facially sufficient petition is filed, as was done here, our
trial courts must ‘“take[] petitioner’s factual allegations as true
and make[] a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her allegations were
proved. If so, the court must issue an order to show cause.”’
[Citations.]” (Lewis, supra, 11 Cal.5th at p. 971.) Thus, “‘absent
a record of conviction that conclusively establishes that the
petitioner engaged in the requisite acts and had the requisite
intent [for a murder conviction under current law], the trial court
should not question [the petitioner’s] evidence’” in the first stage
review. (People v. Rivera (2021) 62 Cal.App.5th 217, 230, review
granted June 9, 2021, S268405; Drayton, supra, 47 Cal.App.5th
at p. 968.) But that is precisely what the trial court did here.
The majority compounds this error when it concludes that
appellant did not make a prima facie case because “substantial
evidence supports a murder conviction based on a direct aiding
and abetting theory” (citing People v. Garcia (2020) 57
Cal.App.5th 100, 115, review granted Feb. 10, 2021, S265692).
The proper test is not whether substantial evidence exists in the
record such “that a rational jury could still find the defendant
guilty of murder on a still-valid theory” (People v. Fortman (2021)
64 Cal.App.5th 217, 224, review granted July 21, 2021, S269228),
but rather whether the record of conviction “‘conclusively
establishes that the petitioner engaged in the requisite acts and
had the requisite intent’” for murder culpability under current
law. (Rivera, at p. 230.) 3

In this regard, I “join the growing chorus that requires an
3

independent finding by the trial court.” (Fortman, supra, 64
Cal.App.5th at p. 221.)

3
 Here, both parties acknowledge that appellant’s petition
“satisfied the requirements of section 1170.95 . . . and stated a
prima facie case for relief.” (Clayton, supra, 66 Cal.App.5th at
p. 154.) They further acknowledge that “[t]he record does not
establish ineligibility as a matter of law, and the [trial] court
should have issued an order to show cause and followed the
procedures mandated by section 1170.95, subdivision (d).
Instead, the court engaged in judicial factfinding based on its
analysis of the evidence.” (Ibid.) This was error, as both parties
correctly agree. (Ibid.)
Instead of recognizing this clear error, the majority itself
engages in factfinding on appeal, relying upon evidence that
appellant paid others to “take [the victim] out” as indisputable
proof that she intended that her victim be killed. It also
acknowledges that in response to appellant’s express instruction
to “take [him] out,” her confederate hired three men “to shoot [the
victim] in the kneecap.” (Maj. opn. ante, at p. 3.) Although these
pieces of evidence support inconsistent conclusions about
appellant’s true intent, the majority engages in its own
factfinding (which we as a reviewing court are prohibited from
doing) to conclude that the evidence of her statement (“to take
[him] out”) outweighs the evidence of the actual plan (to
“kneecap” the victim). This weighing of evidence on appeal is
improper; it is an elementary principle of appellate practice that
we do not weigh the evidence or make factual findings as a
reviewing court.
Finally, I disagree with the majority’s statements that,
while “[t]his was technically a first stage” review, the “nature of
this proceeding had elements akin to a second stage evidentiary
proceeding” (maj. opn ante, p. 10). One need look no further than

4
the trial court’s ruling, which found appellant ineligible as “a
principal that acted with malice aforethought based on the
pleadings” (italics added), to confirm that appellant has not yet
had the evidentiary hearing required by law.
Because the record of conviction does not “conclusively
establish[]” that appellant was convicted of murder-for-hire, she
is entitled to an evidentiary hearing. I would therefore reverse
and remand for such a hearing, as both parties to this appeal
request.
NOT TO BE PUBLISHED.

TANGEMAN, J.

5
 Jacquelyn H. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Adrian K. Panton, 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, Assistant
Attorney General, Idan Ivri and J. Michael Lehmann, Deputy
Attorneys General, for Plaintiff and Respondent.