Filed 11/15/21 P. v. Andrade CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B310303
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA070040-01)
v.
JUAN CARLOS ANDRADE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Hayden Zacky, Judge. Reversed and
remanded.
Elizabeth K. Horowitz, 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 John Yang,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
A jury in 2013 convicted Juan Carlos Andrade and three
fellow gang members of first degree murder, attempted willful,
deliberate and premeditated murder, shooting at an inhabited
dwelling and several related felonies. On appeal this court
reversed the first degree murder convictions of all
four defendants for Chiu error (People v. Chiu (2015) 59 Cal.4th
155 (Chiu)), holding, in part, nothing in the record demonstrated
beyond a reasonable doubt the jury had based its verdict on a
finding that a particular defendant had been the actual killer and
others had directly aided and abetted him, rather than that each
defendant was guilty of first degree murder under the natural
and probable consequences doctrine. (People v. Gomez (Jun. 23,
2015, B251303) [nonpub. opn.].) On remand the People elected
not to retry Andrade for first degree murder, accepting a
reduction to second degree murder with all associated
enhancements found true by the jury.
In November 2020 Andrade filed a petition for resentencing
under Penal Code section 1170.95.1 The superior court, without
first appointing counsel or inviting briefing and “acting as
independent factfinder,” summarily denied the petition, finding
that Andrade “could presently be convicted of murder under a
theory of express or implied malice, whether he was the actual
killer or if he aided and abetted the killer.” Andrade contends,
and the Attorney General concedes, the superior court erred by
1 Statutory references are to this code.
2
failing to appoint counsel and prematurely engaging in
factfinding before issuing an order to show cause and conducting
an evidentiary hearing. We agree, reverse the order denying
Andrade’s petition and remand with directions to appoint counsel
for Andrade, issue an order to show cause and conduct further
proceedings in accordance with section 1170.95, subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND
1. Andrade’s Murder Conviction, Appeal and Sentencing on
Remand
a. The trial
Our opinion in People v. Gomez, supra, B251303, describes
in detail the evidence presented at trial and the jury’s verdict.
Andrade, Jovani Gomez, Kevin Alvarenga and Leonardo
Garcia were charged in an information with murder (§ 187,
subd. (a)) (count 1), attempted willful, deliberate and
premeditated murder (§§ 187, subd. (a), 664) (count 2), two counts
of shooting at an inhabited dwelling (§ 246) (counts 3 and 4),
discharge of a firearm with gross negligence (§ 246.3, subd. (a))
(count 7) and street terrorism (§ 186.22, subd. (a)) (count 8). It
was specially alleged the offenses had been committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)) and as to
counts 1 through 4 that each of the defendants had personally
used and intentionally discharged a firearm causing great bodily
injury or death (§ 12022.53, subds. (b), (c), (d)) and/or a principal
had personally used and intentionally discharged a firearm
causing great bodily injury or death (§ 12022.53, subd. (e)(1)).
According to the evidence at trial, German Chairez and
Leonel Serrano were members of Columbus Street, a criminal
street gang. Andrade, Gomez, Alvarenga and Garcia were
members of the Vincent Town criminal street gang, a rival of
3
Columbus Street’s. On November 19, 2010 Chairez and Serrano
were visiting a friend at an apartment complex in the North Hills
section of the San Fernando Valley. As they walked down the
stairs on their way out of the complex, Serrano heard someone
shout “Fuck Columbus!” and saw two men shooting at him and
Chairez. Serrano and Chairez immediately turned around and
raced back up the stairs as shots continued to be fired. Both men
were hit in the back. Chairez died from a bullet that perforated
his lung. Serrano survived.
Salvador Ortiz was in the area of the apartment complex on
the night of the shooting and encountered Andrade, Garcia and
Gomez, known to him by their gang monikers, “Happy,” “Baby”
and “Clever,” respectively. Ortiz noticed Andrade and Garcia
were armed.2 One man had a semiautomatic weapon; the other a
revolver. Their conversation was friendly because Ortiz, a
member of the Barrio Van Nuys gang, was not a rival. Within a
few minutes of talking to them, Ortiz heard a person in the alley
shout that a “Columbus Streeter” was nearby. Andrade, Garcia
and Gomez ran toward the apartment complex. Ortiz saw Garcia
quickly pull out a gun from underneath his sweatshirt. Almost
immediately, Ortiz heard a barrage of gunshots fired from two
different guns. He did not see the actual shooting.
At trial Serrano denied seeing the shooters. Testifying
after Serrano, Maria Gutierrez (Chairez’s girlfriend and the
mother of his child) explained she had overheard Serrano tell a
friend that Clever and Big Boy, referring to Gomez and Garcia,
had been the shooters and Happy and Kevin, referring to
2 Although our opinion stated Ortiz had noticed Andrade and
Garcia were armed, in his opening brief Andrade indicates Ortiz
actually identified Andrade and Gomez as carrying guns.
4
Andrade and Alvarenga, “had [also] been there.” Brandon
Binning testified that two days before the shooting Andrade had
told him something “was going to go down” and “Columbus Street
was going to see that Vincent Town was back.”
The People’s theory at trial was that each of the defendants
was either a direct perpetrator of the crimes charged or aided and
abetted those offenses. In addition to instructions on murder
(CALCRIM No. 520), first degree premeditated murder
(CALCRIM No. 521), attempted murder (CALCRIM No. 600),
attempted premeditated murder (CALCRIM No. 601) and
shooting at an inhabited dwelling (CALCRIM No. 965), the jury
was instructed on direct aiding and abetting principles
(CALCRIM Nos. 400, 401) and the natural and probable
consequences doctrine (CALCRIM Nos. 402, 403). Under the
natural and probable consequences doctrine, the jury was told, it
could find any one of the defendants guilty of murder and/or
attempted murder if he aided and abetted the target offenses of
shooting at an inhabited dwelling and/or the uncharged target
offense of assault with a firearm, and the natural and probable
consequence of either target offense was murder or attempted
murder.
The jury convicted Andrade, Gomez, Alvarenga and Garcia
of first degree premeditated murder and all other charged
offenses and found each of the special allegations true, including
the section 12022.53, subdivision (d), firearm-use enhancement
allegations as to the murder, attempted murder and shooting at
an inhabited dwelling charges. Andrade was sentenced to an
aggregate indeterminate state prison term of 160 years to life.
5
b. Andrade’s appeal
On appeal we reversed Andrade’s and his codefendants’
convictions for first degree murder based on the Supreme Court’s
decision in Chiu, supra, 59 Cal.4th 155, decided after Andrade’s
trial, which held aiders and abettors may be convicted of first
degree premeditated murder under direct aiding and abetting
principles, but not under the natural and probable consequences
doctrine. (Id. at pp. 158-159.)3 We explained that, although the
instructions arguably required the jury to find the individual who
actually shot and killed Chairez possessed the requisite mental
state of premeditation and deliberation for a first degree murder
conviction, “without a clarification that the natural and probable
consequences doctrine was limited to second degree murder, the
instructions as a whole effectively permitted the jury to convict
some or all of the defendants of first degree premeditated murder
as an aider or abettor under that legally invalid theory.”
We rejected the Attorney General’s argument the Chiu
error was harmless in light of the evidence at trial of planning
and premeditation. We held, “Although the evidence is certainly
sufficient to support a finding of premeditation and deliberation
in this case, the prosecutor relied heavily on the natural and
probable consequences doctrine at trial, telling the jury
repeatedly during closing argument it need not find the
defendants intended to commit a murder so long as it found
murder was a natural, probable and foreseeable consequence of a
different target offense. Nothing in this record demonstrates
beyond a reasonable doubt that the jury based its verdict on the
3 We also reversed the convictions for discharge of a firearm
with gross negligence as a lesser included offense of the charge of
shooting at an inhabited dwelling.
6
legally valid direct aiding and abetting (or direct perpetrator)
theory rather than the invalid natural and probable
consequences doctrine.” (Fn. omitted.)
We remanded the case, explaining the People had the
election in accordance with Chiu of accepting a reduction of the
murder conviction on count 1 to second degree murder, with all
associated enhancements found true by the jury, or to retry the
greater offense of first degree premeditated murder (along with
the accompanying specially alleged enhancements) under a direct
aiding and abetting theory.
c. Proceedings on remand
On remand the People elected not to retry the first degree
murder charge. Resentencing Andrade, the court imposed an
indeterminate state prison sentence of 120 years to life.
2. Andrade’s Petition for Resentencing
On November 18, 20204 Andrade, representing himself,
filed a petition for resentencing pursuant to section 1170.95 and
requested the court appoint counsel to represent him in the
resentencing proceedings. Andrade checked all the boxes on the
printed form petition establishing eligibility for resentencing
relief, including the boxes stating he had been convicted of first or
second degree murder under 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 No. 1437 (2017-2018 Reg. Sess.)
(Stats. 2018, ch. 1015) (Senate Bill 1437).
4 The petition has a file stamp dated December 9, 2020,
which is the date of the superior court’s order summarily denying
the petition. The court’s minute order states the petition was
filed November 18, 2020.
7
The superior court summarily denied the petition on
December 9, 2020 without appointing counsel, requesting briefing
from the prosecutor or holding an evidentiary hearing. After a
lengthy description of Andrade’s trial drawn from our opinion in
People v. Gomez, supra, B251303 and a discussion of the nature
of the prima facie showing required for resentencing relief under
section 1170.95, the court concluded there was “ample proof,
beyond a reasonable doubt, that the jury could have convicted
him of murder on a theory that he was either the direct killer or
that he aided and abetted the killer. Petitioner was either a
direct perpetrator in the killing, based on express or implied
malice, as the jury found true that he personally discharged a
firearm resulting in great bodily injury or death, within the
meaning of Penal Code § 12022.53(d), or that he aided and
abetted the killer. Again, this court acting as independent
factfinder, determines that based on the evidence presented,
there is proof beyond a reasonable doubt that each element of
second-degree murder under current law establishes petitioner’s
ineligibility for relief under the statute (Penal Code § 1170.95),
because Petitioner could have been convicted of murder, under
either an express or implied malice theory as the direct killer [or]
as an aider and abettor.”
Andrade 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
8
(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, 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
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.) However, “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
9
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.” (Id. at
pp. 970-971, 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
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.)
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2. The Superior Court Failed To Appoint Counsel as
Required and Improperly Engaged in Factfinding Before
Issuing an Order To Show Cause; Its Errors Were
Not Harmless
In People v. Lewis, supra, 11 Cal.5th 952, decided several
months after the superior court’s order denying Andrade’s
petition, the Supreme Court 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). Because Andrade checked all the
necessary boxes on his form petition, the superior court erred by
denying his petition without first appointing counsel.
The Lewis Court also held a superior court’s failure to
appoint counsel to represent a petitioner when assessing whether
he or she has made a prima facie showing of entitlement to relief
pursuant to section 1170.95, subdivision (c), is subject to
harmless error analysis. (Lewis, supra, 11 Cal.5th at pp. 957-
958, 973-974.) That is, reversal is not required notwithstanding
the failure to appoint counsel if a review of the record of
conviction indisputably establishes the petitioner is ineligible for
relief. Here, however, because Andrade’s eligibility for
resentencing cannot be determined without an evaluation of the
evidence and additional factfinding, the harmless error doctrine
is inapplicable.
As discussed, this court held the trial record did not
establish beyond a reasonable doubt that Andrade had been
convicted of first degree murder on a legally valid theory (as the
shooter acting with express malice and premeditation or as a
direct aider and abettor of such a shooter) rather than as an aider
and abettor of the target offense of shooting at an inhabited
dwelling under the natural and probable consequences theory
11
invalidated in Chiu. That holding necessarily established
Andrade’s prima facie eligibility for resentencing under
section 1170.95—that is, the record of conviction does not
conclusively establish Andrade is ineligible for relief. (See Lewis,
supra, 11 Cal.5th at pp. 970-971.) Accordingly, Andrade is
entitled to an evidentiary hearing pursuant to section 1170.95,
subdivision (d), to determine whether the court should vacate his
murder conviction and resentence him on the remaining counts
(which would include attempted murder and two counts of
shooting at an inhabited dwelling).
The superior court, although quoting this court’s decision in
People v. Rodriguez, supra, 58 Cal.App.5th 227, review granted,
which discussed the nature of the People’s burden of proof at the
evidentiary hearing following issuance of an order to show cause,
apparently misunderstood the stage of the process at which it
properly acts as an independent fact finder to determine whether
a petitioner should be resentenced under section 1170.95. As the
Attorney General concedes, the superior court’s factfinding in this
case was premature. (See Lewis, supra, 11 Cal.5th at p. 971.)
The superior court also misunderstood the significance of
the jury’s verdict finding true the section 12022.53,
subdivision (d), firearm-use enhancement allegation associated
with the murder count. To be sure, that finding means the jury
found Andrade had personally and intentionally discharged a
firearm, proximately causing death or great bodily injury.
However, it does not necessarily encompass a finding of actual
malice. In light of the instructions and the prosecutor’s closing
argument, the jury may have convicted Andrade of murder and
found true the related section 12022.53, subdivision (d), firearm-
use enhancement based on his participation in the target crime of
12
shooting at an inhabited dwelling and its conclusion Chairez’s
death was the natural and probable consequence of that act. (See
People v. Offley (2020) 48 Cal.App.5th 588, 598-599 [“[b]ecause an
enhancement under section 12022.53, subdivision (d) does not
require that the defendant acted either with the intent to kill or
with conscious disregard to life, it does not establish that the
defendant acted with malice aforethought”].) As we held in
Andrade’s direct appeal, nothing in the trial record warrants a
contrary conclusion beyond a reasonable doubt, let alone as a
matter of law, the standard required to deny a section 1170.95
petition without first issuing an order to show cause and
conducting an evidentiary hearing.
DISPOSITION
The order denying Andrade’s section 1170.95 petition is
reversed. On remand the superior court is to appoint counsel for
Andrade, issue an order to show cause and conduct further
proceedings in accordance with section 1170.95, subdivision (d).
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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