People v. Sincox CA4/3

Filed 11/19/21 P. v. Sincox CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G059710

v. (Super. Ct. No. 09CF0998)

FRANK LEWIS SINCOX, OPINION

Defendant and Appellant.

Appeal from orders of the Superior Court of Orange County, Gregg L.
Prickett, Judge. Reversed and remanded with directions.
Robert L.S. Angres, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony
Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
 Defendant Frank Lewis Sincox was convicted of second degree murder in
2011. His conviction was upheld on appeal. Years after judgment was final, defendant
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filed a petition for resentencing under Penal Code section 1170.95. The trial court found
the petition did not set forth a prima facie case and denied it. In so ruling, the court relied
on this court’s prior opinion affirming defendant’s conviction; specifically, a finding
there was substantial evidence in the record that defendant had directly aided and abetted
the murder. Defendant appeals, arguing the trial court improperly relied on this court’s
prior opinion in denying his petition. We agree. We also find the court incorrectly
calculated defendant’s presentence credits for actual time served. For these reasons, we
reverse the court’s orders and remand this case with directions.

I
FACTS AND PROCEDURAL HISTORY
A. Underlying Conviction and Appeal
The following facts are primarily taken from our prior unpublished opinion
in this matter (G045723), which was included in the record:
“Defendant was a member of the Fifth Street criminal street gang. One
night he was hanging out and smoking methamphetamine with some fellow gang
members. They got into a van and started driving. One of them started ‘challenging’
defendant and another gang member in the van, Martinez. He told them ‘they don’t
know how to gang bang,’ so they should ‘go out today and do something.’
“Someone called one of the gang members to report a ‘suspicious’ man in
Fifth Street territory. One said they should ‘go gang banging, smashing some guys.’
They drove down Fifth Street and found Alex Moreno Cruz, who matched the caller’s
description. The gang members threw gang signs at Cruz, and he threw gang signs back.

1
All further undesignated statutory references are to the Penal Code.

2
 “Defendant and Martinez got out of the van. Martinez ‘had [his] knife out.’
It was a ‘special edition’ ‘Winchester’ knife. Defendant and Martinez ‘hit up’ Cruz,
asking where he was from (i.e., what gang he was affiliated with). Cruz answered: ‘I’m
from nowhere’; ‘I don’t bang.’ Defendant and Martinez began beating him up. Martinez
stabbed Cruz four times, killing him.
“Defendant was charged with one count of murder (Pen. Code, § 187, subd.
(a)) with the special circumstance of murder committed for street gang purposes (§ 190.2,
subd. (a)(22)), one count of street terrorism (§ 186.22, subd. (a)), and one count of
conspiracy to commit murder (§ 182, subd. (a)(1)). The information alleged defendant
committed the murder to benefit a criminal street gang. (§ 186.22, subd. (b)(1)(c).) It
further alleged defendant suffered one prior serious and violent felony conviction
(§§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)), and one prior active gang
participation conviction (§ 667, subd. (a)(1)), and had served a prior prison term (§ 667.5,
subd. (b)).” (Fn. omitted.)
At trial, the jury was instructed on a direct aiding and abetting theory and a
natural and probable consequences theory of murder. The “jury acquitted defendant of
first degree murder and conspiracy, but found him guilty of second degree murder and
active gang participation. It found defendant committed the murder to benefit a criminal
street gang. The court sentenced defendant to a total term of 25 years to life in state
prison. It imposed a 15 years to life term for the murder, a consecutive 10-year term for
the gang enhancement, and a concurrent two-year term for the active gang participation.”
Defendant appealed his convictions and asserted various sentencing errors.
As to the conviction for active gang participation, defendant’s argument hinged on
whether the jury convicted him of murder under the natural and probable consequences
doctrine or under a direct aiding and abetting theory. Defendant maintained he had been
convicted under the former. Specifically, he claimed the jury found him guilty of murder
for “commit[ing] battery or disturbing the peace by ‘hitting up’ Cruz, with the reasonably

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foreseeable result that Martinez would kill Cruz.” He contended those misdemeanors
could not support a conviction for active gang participation because they did not show he
“‘willfully promote[d]’” felonious criminal conduct. (Quoting § 186.22, subd. (a).)
Defendant conceded, however, that willful promotion was tantamount to directly aiding
and abetting and his conviction on this count should be affirmed if the jury had based its
murder conviction on such a theory.
This court affirmed both convictions. In doing so, we found nothing in the
record showed the jury had relied on the natural and probable consequences doctrine.
Further, “substantial evidence show[ed] defendant [directly] aided and abetted the
murder.” In particular, we found “the jury could reasonably conclude defendant:
(1) knew Martinez had a knife and intended to use it to kill Cruz; (2) intended to facilitate
the murder; and (3) aided the murder by helping Martinez confront and attack Cruz, and
by fleeing with him. [Citations.] Because the record amply show[ed] defendant
[directly] aided and abetted ‘felonious criminal conduct’ (§ 186.22, subd. (a)) — the
murder — it sufficiently support[ed] the active gang participation conviction.” As to the
alleged sentencing errors, we modified the judgment to strike the 10-year gang
enhancement and stay the two-year sentence for gang participation.
The trial court issued a new abstract of judgment on December 6, 2012. It
reflected defendant’s new sentence of 15 years to life and credited him with 863 days of
actual time served.

B. Senate Bill No. 1437
Years after defendant was sentenced, the Legislature passed Senate Bill
No. 1437 (SB 1437), which went into effect on January 1, 2019. SB 1437 “‘amend[ed]
the felony murder rule and the natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major participant in the underlying

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felony who acted with reckless indifference to human life.’ [Citation.] In addition to
substantively amending sections 188 and 189 of the Penal Code, Senate Bill 1437 added
section 1170.95, which provides a procedure for convicted murderers who could not be
convicted under the law as amended to retroactively seek relief.” (People v. Lewis (2021)
11 Cal.5th 952, 959 (Lewis).)
“Pursuant to section 1170.95, an offender must file a petition in the
sentencing court averring that: ‘(1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The
petitioner was convicted of first degree or second degree murder following a trial or
accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first
degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of
first or second degree murder because of changes to Section 188 or 189 made effective
January 1, 2019.’” (Lewis, supra, 11 Cal.5th at pp. 959-960.)
The trial court then reviews the petition to determine whether the petitioner
has made a prima facie showing for relief. (Lewis, supra, 11 Cal.5th at p. 960.) If so,
“the trial court issues an order to show cause, and then must hold a hearing ‘to determine
whether to vacate the murder conviction and to recall the sentence and resentence the
petitioner on any remaining counts in the same manner as if the petitioner had not . . .
previously been sentenced, provided that the new sentence, if any, is not greater than the
initial sentence.’ [Citation.] ‘The prosecutor and the petitioner may rely on the record of
conviction or offer new or additional evidence to meet their respective burdens.’
[Citation.] At the hearing stage, ‘the burden of proof shall be on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.’”
(Ibid.)

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C. Defendant’s Section 1170.95 Petition
In June 2019, defendant filed a petition for resentencing under section
1170.95. His petition stated “[a] complaint, information, or indictment was filed against
[him] that allowed the prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine.” Next, it averred “[a]t trial,
[defendant] was convicted of lst or 2nd degree murder pursuant to the felony murder rule
or the natural and probable consequences doctrine.” It also declared defendant “was not
the actual killer,” and he “did not, with the intent to kill, aid, abet, counsel, command,
induce, solicit, request, or assist the actual killer in the commission of murder in the first
degree.” Further, the petition asserted defendant “could not now be convicted of 2nd
degree murder or attempted murder under the natural and probable consequences doctrine
or of murder under the 2nd degree felony murder doctrine because of changes to Penal
Code § 188, effective January 1, 2019.” Defendant requested counsel, which was
appointed prior to the prima facie hearing.
At the prima facie hearing on December 3, 2020, the prosecution argued
defendant was ineligible for relief as a matter of law. Particularly, it focused on the
portion of this court’s prior opinion finding there was substantial evidence defendant had
directly aided and abetted the murder. The trial court agreed and denied the petition,
concluding “that based on the findings in the appellate opinion, . . . a prima facie showing
has not been made.”
Defendant appeals, arguing the trial court improperly relied on this court’s
prior opinion in determining he had not made a prima facie showing. He also argues the
court improperly calculated his presentence credit award. We agree with both
contentions and reverse and remand for further proceedings.

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 II
DISCUSSION
A. Defendant’s Petition
The trial court may review a defendant’s record of conviction, including
any appeals, in determining whether the petitioner has made a prima facie case. (Lewis,
supra, 11 Cal.5th at pp. 971-972.) However, “the prima facie inquiry . . . is limited.”
(Id. at p. 971.) In reviewing the petition, “‘“the court takes petitioner’s factual allegations
as true and makes a preliminary assessment regarding whether the petitioner would be
entitled to relief if his or her factual allegations were proved. If so, the court must issue
an order to show cause.”’ [Citation.] ‘[A] court should not reject the petitioner’s factual
allegations on credibility grounds without first conducting an evidentiary hearing.’
[Citations.] ‘However, if the record, including the court’s own documents, “contain[s]
facts refuting the allegations made in the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.”’” (Ibid.) We review the trial court’s
ruling de novo. (People v. Duchine (2021) 60 Cal.App.5th 798, 811 (Duchine).)
As noted by defendant, there is a split of authority as to how trial courts
should conduct the prima facie review. This split results from a difference in
interpretation of section 1170.95, subdivision (a)(3), which requires a petition to state
“[t]he petitioner could not be convicted of first or second degree murder because of
changes to Section 188 or 189” under SB 1437. (§ 1170.95, subd. (a)(3).)
One appellate court has held a petitioner fails to carry his or her burden if
“the record of conviction contains substantial evidence based on which a reasonable trier
of fact could find the petitioner guilty of murder beyond a reasonable doubt under current
law despite the changes made by [S.B. 1437].” (People v. Garcia (2020) 57 Cal.App.5th
100, 106, review granted February 10, 2021, S265692 (Garcia).) Garcia reasoned that
section 1170.95, subdivision (a)(3) “clearly and unambiguously requires a prima facie
showing that the petitioner ‘could not be convicted of . . . second degree murder because

7
of changes to Section[s] 188 [or 189] . . . .’ [Citation.] ‘Could’ is ‘used . . . as an
alternative to can suggesting less force or certainty.’” (Id. at p. 114.) If the record
contains substantial evidence showing the petitioner could have been convicted of murder
under current law, then the petitioner has failed to make a prima facie case as to section
1170.95, subdivision (a)(3). In other words, the petitioner has not conclusively shown he
or she could not be convicted of murder under current law. (Id. at pp. 114-115.)
The majority of appellate courts disagree with Garcia and have found the
substantial evidence test has no import at the prima facie stage. (People v. Aleo (2021)
64 Cal.App.5th 865, 872.) Rather, they believe “[i]f a defendant asserts he lacked the
requisite intent or did not act in a manner that would make him liable under still-valid
murder theories, unless the record of conviction refutes those assertions as a matter of
law, the defendant has met his prima facie burden. [Citation.] In that circumstance, the
trial court should take [the defendant] at his word and not engage in factfinding on the
issues ‘without first issuing an order to show cause and allowing the parties to present
evidence at a hearing.’ [Citations.] Implicit in [this] holding is that the third element of
section 1170.95, subdivision (a) does not require an absence of sufficient evidence, on the
record of conviction, to support a hypothetical finding that the defendant is guilty of
murder under a currently valid theory.” (Duchine, supra, 60 Cal.App.5th at p. 813.)
We agree with the latter approach. First, we are persuaded by the reasoning
of other courts, which have explained “[i]n a section 1170.95 proceeding, the ultimate
question is not a backward-looking inquiry into whether a past conviction finds support
in substantial evidence. . . . [I]t is instead whether, applying changes brought about by
[SB] 1437, there is a prima facie case ‘that [the defendant] did not, in fact, act or harbor
the mental state required, for a murder conviction under current law.’” (People v.
Secrease (2021) 63 Cal.App.5th 231, 246, review granted June 30, 2021, S268862.)
“The standard adopted by Garcia, in which the trial court focuses on the state of the
existing record and applies an appellate review substantial evidence standard, makes little

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sense in this context. If it had intended the process to be substantial evidence review of
the existing record, the Legislature could simply have provided an appellate remedy, such
as direct appeal for nonfinal convictions and habeas corpus for final convictions. This is
not what it did. Instead, the Legislature imposed the burden of proof on the prosecution,
at the resentencing hearing. The interpretation adopted by Garcia would mean the
prosecution’s burden would be to prove ‘beyond a reasonable doubt’ that ‘substantial
evidence’ exists, which by itself borders on incomprehensible. The court would then
employ these two widely divergent standards in a combined (and backwards) fashion to
determine . . . whether a jury hypothetically could have found a defendant guilty under a
permissible theory had it addressed the issue.” (Duchine, supra, 60 Cal.App.5th at pp.
813-814, fn. omitted.)
Second, as our Supreme Court stated after Garcia was decided, “the prima
facie inquiry under subdivision (c) is limited.” (Lewis, supra, 11 Cal.5th, at p. 971.) A
court should accept as true the allegations in a section 1170.95 petition unless the record
“‘contain[s] facts refuting the allegations made in the petition.’” (Ibid.) A finding that
the record contains substantial evidence to support a conviction under a still-valid murder
theory does not refute a petitioner’s assertion that he or she could not be convicted under
2
current law. Such a finding only indicates the record contains enough evidence to
support a conviction. It does not show as a matter of law that the petitioner’s claim is
false.
This point is soundly illustrated by examining the deferential nature of
substantial evidence review. Under this standard, generally, the appellate court only
considers the evidence supporting the conviction. “‘[I]t is of no consequence that the
trial court believing other evidence, or drawing other reasonable inferences, might have

2
Merriam-Webster Dictionary defines “refute” as “to prove wrong by argument or
evidence : show to be false or erroneous.” (Merriam-Webster’s Dict. Online (2021)
.)

9
reached a contrary conclusion.’” (Jameson v. Five Feet Restaurant, Inc. (2003) 107
Cal.App.4th 138, 143, italics omitted.) Further, the appellate court resolves all
evidentiary conflicts in favor of the conviction. (See In re Marriage of Brandes (2015)
239 Cal.App.4th 1461, 1472.) It “does not reweigh the evidence, evaluate the credibility
of witnesses or indulge in inferences contrary to the findings of the trial court.” (In re
Michael G. (2012) 203 Cal.App.4th 580, 589.)
Given the amount of deference under this review standard, it cannot be said
a section 1170.95 petition is defective as a matter of law simply because there is
substantial evidence in the record to uphold a murder conviction under current law. In
such a scenario, the record could also contain compelling evidence supporting the
petitioner’s allegations. Accordingly, even if there is substantial evidence in the record to
support a conviction under a still-valid theory, that does not mean the record is free of
material factual conflicts. Numerous factual conflicts will likely exist, and they can only
be resolved at an evidentiary hearing under section 1170.95, subdivision (d). They
cannot be resolved at the prima facie stage. Thus, we disagree with the standard set forth
in Garcia. To warrant dismissal at the prima facie stage, the prosecution must show the
petitioner’s allegations are refuted, and, in doing so, that there are no material conflicts of
fact. (See Lewis, supra, 11 Cal.5th at p. 971.)
Given this conclusion, the trial court erred by ruling defendant had not
made a prima facie showing based on this court’s prior opinion affirming defendant’s
convictions. The previous finding that “substantial evidence show[ed] defendant
[directly] aided and abetted the murder,” did not sufficiently refute the allegations in his
petition. Thus, on remand we direct the trial court to issue an order to show cause under
section 1170.95, subdivision (c), and then hold a hearing under subdivision (d) of the
statute.

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B. Presentence Credits
After the trial court imposed judgment on August 26, 2011, it awarded
defendant 863 days of presentence credit for actual days served. After we modified the
judgment on appeal, the trial court resentenced him. The new abstract of judgment,
issued on December 6, 2012, again awarded him 863 days of presentence credit.
Defendant contends he should have been given additional credit for actual time served
between the court’s initial sentence and the modification of his sentence. We agree.
“A sentence that fails to award legally mandated custody credit is
unauthorized and may be corrected whenever discovered.” (People v. Taylor (2004) 119
Cal.App.4th 628, 647.) “[W]hen a prison term already in progress is modified as the
result of an appellate sentence remand, the sentencing court must recalculate and credit
against the modified sentence all actual time the defendant has already served, whether in
jail or prison, and whether before or since he was originally committed and delivered to
prison custody.” (People v. Buckhalter (2001) 26 Cal.4th 20, 29.) “[W]hen a sentence is
modified while in progress, . . . [the] defendant’s confinement under the original
commitment should simply be credited as partial service of the sentence ultimately
imposed.” (Id. at p. 36.) Failing to recalculate this credit on remand constitutes
reversible error. (Id. a pp. 40-41.)
Relying on Buckhalter, the Attorney General argues defendant is not
entitled to additional presentence custody credits under section 4019, which provides
conduct credits for good behavior. (Citing People v. Buckhalter, supra, 26 Cal.4th at
p. 20.) But defendant is not seeking any conduct credits. He is only seeking credits for
actual time served. Though a defendant “is not eligible to earn additional credits for good
behavior as a presentence detainee” following modification of a sentence (id. at p. 29),
the court must “credit the actual time [the] defendant had served on his sentence prior to
the modification” (id. at pp. 23-24).

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 The record shows the trial court failed to recalculate defendant’s credit for
actual time served after his sentence was modified. Rather, he was credited with only
863 days of actual credit, the same amount he had been credited over a year prior.
Defendant maintains he is entitled to 1,322 days of credit for actual time served. We
leave it to the trial court to determine on remand whether his calculation is accurate. (See
People v. Montalvo (1982) 128 Cal.App.3d 57, 62.)

III
DISPOSITION
The trial court’s orders are reversed, and the matter is remanded for further
proceedings as directed in this opinion.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.

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