People v. Lozolla CA4/2

Filed 11/22/21 P. v. Lozolla CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

THE PEOPLE,

Plaintiff and Respondent, E076232

v. (Super.Ct.No. FSB12071)

KIRK BRANDY LOZOLLA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded.

Patricia A. Scott, 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, Michael P. Pulos and Joseph C.

Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

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 Defendant and appellant, Kirk Brandy Lozolla, filed a petition for resentencing

pursuant to Penal Code section 1170.95, 1 which the superior court denied. On appeal,

defendant contends the court erred in summarily denying his petition. We reverse and

remand the matter for an evidentiary hearing.

I. FACTUAL AND PROCEDURAL BACKGROUND 2

On August 26, 1996, the victims, Antonio Reyes and Raymond Jaramillo, visited

Yvonne Mendez’s home in Colton. Daniel Lopez and defendant were already there, and

they told Reyes and Jaramillo that they were from “North Side Colton,” a local gang.

One of the victims said they were from “West Side Verdugo,” also known as

“Mt. Vernon,” a gang that had problems with the North Side Colton gang.

The victims left and said they would return later. When they returned, they went

to a bedroom and lay on the bed with Mendez. Defendant, Lopez, Michael Hernandez,

and Jesse Perez (all North Side Colton gang members) also entered the bedroom.

The four intruders asked the victims, “What are you punks doing here?” The

victims identified themselves as “Mt. Vernon” gang members and tried to leave the

bedroom. All four of the intruders pulled out guns and said, “You guys aren’t going no

1 All further statutory references are to the Penal Code unless otherwise indicated.
2 On our own motion we take judicial notice of the opinion from defendant’s
appeal of the judgment. (People v. Lozolla (Dec. 12, 1998, E021055) [nonpub. opn.].)
The opinion was attached to the People’s informal response to the petition. The superior
court’s tentative decision, which became its final decision, reflects that the court relied
extensively on that opinion. We derive much of our factual and procedural recitation
from that opinion.
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where yet.” They also said, “You are not supposed to be in Colton, and what are you

punks doing in Colton?”

The four intruders told the victims to put their hands up, and then they searched

them for weapons. They also told the victims to empty their pockets onto the bed. Still

holding the victims at gunpoint, the intruders began beating them. Hernandez and/or

Perez kicked Reyes in the head. Defendant hit and/or kicked Jaramillo. The intruders

then told the victims to leave, and all four said that if they ever came back to Colton they

would kill them. They also mentioned, “North Side Colton,” again.

The intruders forced the victims out the back door of the residence and into an

alley. One of the intruders told someone sitting in a red car to start the car. The intruders

told the victims to run. They again told the victims that if they ever came back, they

would kill them.

As the victims started to run, Jaramillo heard gunshots and saw Reyes running past

him. Reyes let out a moan, and Jaramillo turned to go back toward him. Jaramillo saw

all four intruders standing outside the residence and saw shots being fired from all four of

their guns. At one point in his testimony, Jaramillo said he could not tell whether the

four people he saw outside the residence when he looked back were male or female.

However, he confirmed that defendant and Lopez were among the four who were outside.

Jaramillo was hit in the face by a bullet. He fell to the ground but got up and

started running again. As he did so, he was hit in the back by another bullet. Reyes died

of gunshot wounds to the head, chest, and abdomen. The intruders left the scene in the

red car.
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 The trial court instructed the jury with CALJIC No. 3.02:3 “One who aids and

abets [another] in the commission of a crime [or crimes] 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[s] originally aided and abetted. [¶] In order to find a

defendant guilty of the crime[s] of Murder or Attempted Murder under this theory, [as

charged in Count[s] 1 and 2,] you must be satisfied beyond a reasonable doubt that

[¶] 1. The crime or crimes of (1) Assault with a Deadly Weapon, or (2) Robbery [were]

committed; [¶] 2. That a defendant aided and abetted [those] crime[s]; [¶] 3. That a co-

principal in those crimes committed the crime[s] of Murder and/or Attempted Murder;

and [¶] 4. The crime[s] of Murder and Attempted Murder [were] a natural and probable

consequence of the commission of the crime[s] of (1) Assault with a Deadly Weapon, or

(2) Robbery.”

The trial court additionally gave the jury CALJIC No. 8.21: “The unlawful killing

of a human being, whether intentional, unintentional or accidental, which occurs [during

the commission or attempted commission of the crime] of robbery is murder of the first

degree when the perpetrator had the specific intent to commit the crime of robbery.” The

court also gave the jury CALJIC No. 8.27, which instructed: “If a human being is killed

by any one of several persons engaged in the commission or attempted commission of the

crime of robbery, all persons, who either directly and actively commit the act constituting

robbery, or who with knowledge of the unlawful purpose of the perpetrator of the robbery

3 By order dated September 22, 2021, we granted defendant’s request that we take
judicial notice of the jury instructions given at trial.
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and with intent or purpose of committing, encouraging, or facilitating the commission of

the robbery, aid, promote, encourage, or instigate by act or advice the robbery

commission, are guilty of murder of the first degree, whether the killing is intentional,

unintentional, or accidental.”

The jury convicted defendant of the first degree murder of Reyes (count 1), the

attempted murder of Jaramillo (count 2), and two counts of residential robbery against

Reyes and Jaramillo (counts 3 & 4). The jury found true allegations that (1) the

attempted murder was willful, deliberate, and premeditated; (2) defendant personally

used a firearm in the commission of the robberies; and (3) defendant was armed in the

commission of all four offenses. The trial court imposed sentences and enhancements of

13 years four months for the robberies, 26 years to life for the murder, and life plus one

year for the attempted murder. 4

On April 22, 2019, defendant filed a form petition for resentencing pursuant to

section 1170.95. On July 19, 2019, the court appointed counsel for defendant.

On November 13, 2019, the superior court issued a tentative decision denying

defendant’s petition. Having reviewed this court’s opinion from defendant’s appeal of

4 A jury found defendant’s coperpetrator Hernandez guilty of first degree murder,
attempted premediated murder, and two counts of first degree robbery in concert.
(People v. Hernandez (Apr. 2, 1998, E020326) [nonpub. opn.] (Hernandez).) Hernandez
likewise appealed his convictions; this court modified his sentence but otherwise
affirmed the judgment. (Ibid.) Hernandez also filed a section 1170.95 petition, which the
superior court denied. (People v. Hernandez (Apr. 27, 2020, E072790) [nonpub. opn.].)
Hernandez also appealed the denial of his petition, which this court affirmed. (Ibid.)
Lopez was charged and tried jointly with defendant, but was acquitted on all charges.
The records on appeal for defendant’s and Hernandez’s appeals are stored in this court’s
archives.
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the judgment, the court observed, “Neither the felony murder rule, nor the natural and

probable consequences doctrine were implicated in this case.” The court also noted that

defendant was one of four people shooting at the victims as they ran from defendant’s

group: “Defendant . . . was therefore acting with the intent to kill. Certainly shooting at

the victims as they tried to escape would classify Defendant as a major participant acting

with reckless indifference to human life. [¶] . . . Defendant is not entitled to relief as he

was acting as a major participant, with intent to kill and with reckless indifference to

human life.”

Counsel for both parties submitted on the superior court’s tentative decision. On

November 15, 2019, the tentative decision became the ruling on defendant’s petition.

At a hearing on December 13, 2019, the superior court noted that there was a

misunderstanding on the matter when counsel had submitted on the tentative decision.

Counsel intended to submit only on the issue of whether the section 1170.95 petitioning

procedure was constitutional, “not to address the issue of whether or not [defendant]

would, nevertheless, be liable for murder under the new statute.” Thus, the court vacated

its decision and set the matter for further hearing.

On January 29, 2020, the People submitted an informal response to defendant’s

petition. The People contended defendant was ineligible for relief because “[t]he

evidence proves beyond a reasonable doubt that the defendant was a major participant in

the robbery in the course of which he demonstrated reckless indifference to human life.”

At the hearing on October 2, 2020, defense counsel submitted on the superior

court’s previous tentative decision. The court ruled: “So that being the case, the Court
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finds that [defendant] would still be liable for murder . . . . And therefore, he is not

eligible for any relief under Penal Code Section 1170.95. So the petition for

[re]sentencing is denied. [¶] . . . [¶] The tentative decision will now be the final decision

of the Court.”

II. DISCUSSION

Defendant contends the superior court erred in summarily denying his petition

without issuing an order to show cause. Defendant argues that the court’s determination

that defendant was not entitled to relief was based on its erroneous conclusions that the

jury was not instructed on the felony-murder rule and natural probable consequences

doctrine. Defendant contends “the court engaged in impermissible fact-finding and

weighing of evidence.” Defendant maintains that, based on the trial court’s instructions

to the jury and its findings, the court was required to set an order to show cause. The

People concede that defendant is not ineligible for relief as a matter of law; thus, he is

entitled to an evidentiary hearing. We agree.

“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘to amend 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

felony who acted with reckless indifference to human life.’ (Stats 2018, ch. 1015, § 1,

subd. (f).) 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

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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.’

[Citations.] Additionally, the petition shall state ‘[w]hether the petitioner requests the

appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply with

subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of

another petition.’” (Lewis, supra, 11 Cal.5th at pp. 959-960.)

“Where the petition complies with [section 1170.95,] subdivision (b)’s three

requirements, then the court proceeds to subdivision (c) to assess whether the petitioner

has made ‘a prima facie showing’ for relief.” (Lewis, supra, 11 Cal.5th at p. 960.) A

court may rely on the record of conviction in determining whether a prima facie showing

has been made. (Id. at p. 970.) “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.” (Id. at p. 971.)

“While the trial court may look at the record of conviction after the appointment of
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counsel to determine whether a petitioner has made a prima facie case for section

1170.95 relief, 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 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.”’” (Ibid.)

“‘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 at

p. 971.) “Appellate opinions . . . are generally considered to be part of the record of

conviction.” (Id. at p. 972.) “In reviewing any part of the record of conviction at this

preliminary juncture, a trial court should not engage in ‘factfinding involving the

weighing of evidence or the exercise of discretion.’” (Ibid.) “In sum, the parties can, and

should, use the record of conviction to aid the trial court in reliably assessing whether a

petitioner has made a prima facie case for relief under [section 1170.95,] subdivision (c).”

(Ibid.)

In this case, the superior court denied defendant’s petition at the prima facie stage

under section 1170.95, subdivision (c). “A denial at that stage is appropriate only if the

record of conviction demonstrates that ‘the petitioner is ineligible for relief as a matter of

law.’ [Citations.] This is a purely legal conclusion, which we review de novo.” (People

v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978;

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accord, People v. Galvan (2020) 52 Cal.App.5th 1134, 1137, 1142, review granted

Oct. 14, 2020, S264284.)

Here, contrary to the superior court’s conclusion, the jury was instructed with both

the felony-murder rule and the natural and probable consequences doctrine. Thus, the

court’s determination that defendant intended to kill or was a major participant acting

with reckless disregard for human life, could have been based on its error in

understanding upon what theories the jury was instructed. Ultimately, where the jury was

instructed on these theories, a determination of under which theory the jury found

defendant guilty at the prima facie stage would involve quintessentially prohibited

“‘factfinding involving the weighing of evidence or the exercise of discretion.’” (Lewis,

supra, 11 Cal.5th at p. 972.) Therefore, the court erred in denying the petition without

setting an order to show cause because defendant made a prima facie showing of relief.

“If the trial court determines that a prima facie showing for relief has been made,

the trial court [shall] issue[] an order to show cause, and then . . . 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.’” (Lewis, supra, 11 Cal.5th at p. 960.)
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 Because defendant made a prima facie showing, the superior court was required to

set an order to show cause prior to making such a determination. Only after the parties

are given the opportunity to produce the record of conviction, which could also include

the clerk’s and reporter’s transcripts on appeal, and offer new or additional evidence, can

the court engage in factfinding in order to make such a determination. Moreover, the

court’s factfinding would be subject to the prosecution’s burden of proving beyond a

reasonable doubt that defendant is ineligible for resentencing. We express no opinion as

to how the trial court should resolve the issues on remand.

III. DISPOSITION

The order denying defendant’s petition is reversed. The matter is remanded to the

superior court to issue an order to show cause and to hold a hearing to determine whether

to vacate defendant’s murder conviction, recall the sentence, and resentence defendant.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:

FIELDS
J.

MENETREZ
J.

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