Filed 1/5/22 P. v. Carvajal CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B310884
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA368069)
v.
FRANCISCO CARVAJAL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Richard S. Kemalyan, Judge. Reversed and
remanded.
Thomas T. Ono, 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, Assistant
Attorney General, Daniel C. Chang and Michael Katz, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Francisco Carvajal (defendant)
appeals from the order denying his petition for resentencing
pursuant to Penal Code section 1170.95.1 He contends that the
trial court erred in finding that he had not made a prima facie
showing of eligibility for relief under that statute. Both the
People and we agree. The order is reversed, and the matter is
remanded to the superior court with directions to issue an order
to show cause and conduct an evidentiary hearing pursuant to
section 1170.95, subdivision (d).
BACKGROUND
In 2011 defendant was charged with the murder of Juan
Ocegueda and the allegations that the crime was committed in
association with a criminal street gang and that defendant
personally used a deadly weapon, a knife, in the commission of
the crime. Defendant was tried by a jury, which was instructed
that defendant was being prosecuted under two theories: “(1)
malice aforethought, and (2) felony murder” based on burglary
and attempted robbery. The court instructed with CALCRIM
Nos. 520, 521, 540A, 540B and 548. The jury found defendant
guilty of first degree murder with a true gang finding, but found
not true the allegation that he had personally used a knife.
Defendant was sentenced to 25 years to life in prison, plus 10
years due to the gang finding. Upon defendant’s appeal we
amended the sentence to life in prison with a 15-year minimum
parole eligibility term pursuant to section 186.22, subdivision
(b)(5). The judgment was otherwise affirmed in People v.
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2
Carvajal (Sept. 19, 2013, B239135) (nonpub. opn.) (appellate
opinion).2
The evidence at defendant’s 2011 trial showed that the
victim Ocegueda and his brother Julio lived in rooms in their
parents’ garage near a back alley. Their sister Elizabeth and
their parents occupied the main house in front. Shortly before
8:45 a.m. on December 6, 2006, Elizabeth saw Ocegueda on the
front porch with a man she knew as “Chance,” identified by other
witnesses as David Canche. Elizabeth saw Canche walk toward
the back gate that led to the alley where he spoke to another man
who appeared to be hiding behind the garage. Elizabeth could
barely see the other man and could not identify him. Elizabeth
and her mother then left in their car to bring Julio home from the
hospital. A short while later Ocegueda knocked on his neighbor’s
door for help and then collapsed. When Elizabeth, Julio and their
mother returned home, the police were there.
Ocegueda suffered four stab wounds. One was five to six
inches deep and penetrated his chest, right lung, and right heart
ventricle, causing death within several minutes. The medical
examiner testified that the fatal wound was probably caused by a
knife.
Canche’s girlfriend Monique Flores testified that in
December 2006, Ocegueda was a close friend, like a brother to
her. Ocegueda occasionally allowed Flores and Canche to stay
with him in his room, and the three sometimes used drugs
together. Canche and defendant were members of the Highland
Park gang, and Flores admitted to associating with the gang.
2 Our summary of the procedural facts and trial evidence is
taken from the appellate opinion.
3
She also admitted to having committed several felonies including
a robbery with Canche. While she drove a car she and Canche
had stolen, she stopped for defendant at Canche’s direction,
although she did not want to do so since defendant had lost the
respect of the Highland Park gang about two months earlier.
Flores explained that defendant would have to earn back the
gang’s respect by committing crimes such as robbery, assault, or
even a killing. She also knew that defendant needed money
because he had been living on the streets. Canche had told her
that he would do anything for money, which Flores expected from
any gang member, as they would steal for drugs, money, or for
retribution.
Flores was with Canche and defendant nearly all of the
night before the murder. While driving around the group stopped
briefly at Ocegueda’s house to ask about Julio, who had been
beaten in a robbery at his house, and then did other things. In
the morning, Flores drove Canche and defendant back to
Ocegueda’s house where she parked in the alley near Ocegueda’s
room. While Canche went inside to speak to Ocegueda, she
remained outside. Flores testified that as far as she knew
defendant continued to sleep in the back seat of the car.
After about 15 minutes Canche and defendant appeared in
the alley near her car telling her to hurry, “We have to go.”
Flores saw blood on their jackets and hands, and defendant was
holding a large knife about five inches long with a mother-of-
pearl handle, which he placed in the pocket of the passenger door.
The two men were nervous, acting paranoid and overly rushed.
Flores testified she drove to Canche’s house, where she
attempted to escape, but Canche caught her, dragged her back to
the car, placed her in the back seat, and drove to the home of a
4
man Flores did not know.3 Canche gave the man the bloody
jackets and defendant told him to burn them. The man put the
jackets in a black trash bag and went toward the backyard.
Canche held Flores by the hand or wrist while she was in the
house. For several hours afterward she remained locked in the
car with the alarm set while Canche and defendant stood at a
distance talking. At some point Canche and defendant both
cried, and Canche told Flores he was sorry. Defendant and
Canche would not let her leave the car. Flores fell asleep until
she was awakened by police officers who arrested her, searched
the car, and seized a rifle from the center console. Canche, too,
was arrested, but defendant was not found.
In an interview with a Los Angeles police detective Flores
at first lied, not wanting to be a “snitch” and wanting to protect
her boyfriend. She ultimately told the detective that Canche
went into Ocegueda’s house to get his own belongings, but she
knew that defendant went inside to take Ocegueda’s new laptop
computer. At Flores’s direction the detective went to Osorio’s
house where Osorio said that defendant had asked him to burn
the black bag, but he had left it in the trash where it was
retrieved with an Adidas jacket that Flores identified as the one
defendant had been wearing. Another jacket was found in the
clothes dryer. Samples from both jackets tested positive for blood
and Ocegueda’s DNA. Defendant’s DNA was found on the Adidas
jacket. Law enforcement unsuccessfully searched for defendant
for several years in Southern California. In February 2010,
defendant was arrested after breaking a car window. Though
3 The man was Arthur Osorio, defendant’s cousin.
5
defendant gave a false name and date of birth he was identified
by his fingerprints.
Canche testified on defendant’s behalf, taking all the blame
for Ocegueda’s death while denying he had ever intended to steal
from or rob the victim.4 At first Canche claimed he could not
recall whether defendant was present. But later in his testimony
he said he was alone with Ocegueda. Canche testified he was on
friendly terms with Ocegueda in 2006 and he and Flores went to
Ocegueda’s home often. Canche claimed that he had never gone
into the front house before because Ocegueda’s parents did not
want him or any of his friends there. Defendant and Canche
knew each other from the Highland Park neighborhood where
Canche grew up and they had been friends for several years.
Canche had limited memory of the evening before the
murder. He recalled going to Ocegueda’s house in the morning,
where Flores parked in the alley and defendant slept in the back
seat. Ocegueda was with his mother and sister and told Canche
that he would meet him in the back after they left. Canche
denied seeing defendant or any other man in the alley at that
time. He claimed that after the mother and sister left, he
followed Ocegueda to the front house when Ocegueda refused to
help him gather his belongings in the garage room. Once in the
front house Canche confronted Ocegueda with rumors that he
had raped someone. Ocegueda became hysterical and they
argued. Ocegueda repeatedly said Canche’s name and pleaded
with him not to do anything to him, which Canche found
confusing because he was not being aggressive or threatening
4 Canche was in prison following his plea to voluntary
manslaughter for his part in Ocegueda’s killing.
6
and did not have a weapon. The argument became more heated
until they exchanged blows and Canche took out his knife and
stabbed Ocegueda. Canche described the knife as all silver or
chrome in color.
Canche remembered returning to the car but not whether
defendant was in or outside the car at the time. Canche did not
recall going to Osorio’s house, spending several hours there, or
leaving his jacket there. Canche claimed Flores was upset at
first and denied that he held her against her will. He recalled
spending the night at a friend’s home, but could not remember
where defendant went. Canche admitted being a member of the
Highland Park gang but refused to say whether defendant was a
member of the gang. Canche admitted knowing that Ocegueda
had computers and a laptop and conceded that Ocegueda might
have had drugs during their visits.
In an interview after his arrest, Canche denied stabbing
Ocegueda, participating in his murder, or knowing who did,
adding, “and I’m not going to name no names.” He told the
detective there was someone else with him but claimed not to
know who it was. When told he must know because he was there,
Canche answered, “But I’m not going to tell you who did it.”
Defendant’s wife testified she had lived with defendant
since 2004, married in 2009, and had never lived apart since
their marriage, except for a few days in December 2006 after an
argument. She said that defendant had worked the entire time
and she produced several pay stubs. She did not know that
defendant was a gang member, and knew nothing of this incident
until his arrest in February 2010.
In July 2019 defendant filed a petition for resentencing
pursuant to section 1170.95. The trial court appointed counsel
7
for defendant and scheduled the prosecutor’s response. On
January 29, 2021, after briefing and arguments from both
parties, the court found that defendant had failed to make a
prima facie showing of eligibility under the statute and
summarily denied the petition without issuing an order to show
cause. Defendant filed a timely notice of appeal from the order.
DISCUSSION
Defendant contends that the trial court erred in denying
his section 1170.95 petition without issuing an order to show
cause. Respondent agrees.
Section 1170.95 provides a procedure for convicted
murderers to retroactively seek relief if they could not be
convicted under sections 188 and 189 as amended effective
January 1, 2019. (People v. Lewis (2021) 11 Cal.5th 952 (Lewis);
see § 1170.95, subd. (c).) Under the amended statutes, an aider
and abettor may not be convicted of felony murder or murder
under the natural and probable consequences doctrine if he was
“‘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).)” (People v. Gentile (2020) 10 Cal.5th 830, 842.) A
person is entitled to relief under section 1170.95 if, as relevant
here, (1) “[a] complaint, information, or indictment was filed
against [him] that allowed the prosecution to proceed under a
theory of felony murder . . . ,” (2) he “was convicted of murder,
attempted murder, or manslaughter following a trial,” and (3) he
“could not presently be convicted of murder or attempted murder
because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a).)
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As defendant’s petition alleged all three conditions and
requested appointment of counsel the trial court properly
appointed counsel, received briefing and then held a hearing to
consider whether defendant had made a prima facie showing of
eligibility under the statute. (See Lewis, supra, 11 Cal.5th at
pp. 957, 962; see also § 1170.95, subd. (c).) The trial court was
entitled to consider the record of conviction in making that
determination. (Lewis, supra, at p. 971.) However, “[i]n
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.’” (Id. at
p. 972, quoting People v. Drayton (2020) 47 Cal.App.5th 965, 980.)
“[T]he ‘prima facie bar was intentionally and correctly set very
low.’” (Lewis, at p. 972.)
“[W]hen assessing the prima facie showing, the trial court
should assume all facts stated in the section 1170.95 petition are
true. [Citation.] The trial court should not evaluate the
credibility of the petition’s assertions, but it need not credit
factual assertions that are untrue as a matter of law—for
example, a petitioner’s assertion that a particular conviction is
eligible for relief where the crime is not listed in subdivision (a) of
section 1170.95 as eligible for resentencing. Just as in habeas
corpus, if the record ‘contain[s] facts refuting the allegations
made in the petition . . . the court is justified in making a
credibility determination adverse to the petitioner.’ [Citation.]
However, this authority to make determinations without
conducting an evidentiary hearing pursuant to section 1170.95,
subd[ivision] (d) is limited to readily ascertainable facts from the
record (such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of discretion
9
(such as determining whether the petitioner showed reckless
indifference to human life in the commission of the crime). [¶] If,
accepting the facts asserted in the petition as true, the petitioner
would be entitled to relief because he or she has met the
requirements of section 1170.95(a), then the trial court should
issue an order to show cause.” (People v. Drayton, supra, 47
Cal.App.5th at pp. 980-981; accord, People v. Aleo (2021) 64
Cal.App.5th 865, 871-872; People v. Duchine (2021) 60
Cal.App.5th 798, 811-812.)
Here, the trial court considered the appellate opinion and
the preliminary hearing transcript but did not do so to determine
whether there were facts showing that defendant was ineligible
as a matter of law. Rather, the court considered whether
defendant “would or could be convicted of murder under the
amended statute.” We agree with defendant and respondent that
the trial court asked and answered the wrong question. The
question to be resolved at the prima facie stage is not whether
there is evidence in the record of conviction supporting a finding
that defendant would or could be convicted of murder under the
amended law, but rather, did “‘the record of conviction show[] the
petitioner is ineligible for relief as a matter of law.’” (Lewis,
supra, 11 Cal.5th at pp. 966-967 [rejecting a two-step prima facie
process].) The record of conviction showed that felony murder
was a theory of defendant’s prosecution, with no indication that
the jury rejected that theory, and there was no jury finding that
defendant was the actual killer, harbored an intent to kill, or was
a major participant who acted with reckless indifference to
human life. Thus, the record of conviction did not refute the
truth of the allegations of defendant’s petition. The trial court
10
was thus required to issue an order to show cause. (See id. at
p. 971, citing People v. Drayton, supra, 47 Cal.App.5th at p. 978.)
We agree also with the parties that the trial court
erroneously engaged in factfinding. Applying the factors
suggested in People v. Banks (2015) 61 Cal.4th 788 and People v.
Clark (2016) 63 Cal.4th 522, the court extensively analyzed the
facts presented in the documents it reviewed, drew inferences,
weighed witnesses’ credibility, and independently concluded that
defendant was a major participant who acted with reckless
indifference to human life. This is the sort of analysis left to the
evidentiary hearing held pursuant to section 1170.95, subdivision
(d), after an order to show cause has been issued and when the
prosecution will have the burden to prove beyond a reasonable
doubt that defendant is guilty of murder under a still valid theory
of murder. (See People v. Duchine, supra, 60 Cal.App.5th at
pp. 815-816; People v. Drayton, supra, 47 Cal.App.5th at p. 982.)
We thus concur in the parties’ request that the order denying the
petition be reversed and the matter remanded for that purpose.
DISPOSITION
The order denying the section 1170.95 petition is reversed
and the matter is remanded for the issuance of an order to show
cause and an evidentiary hearing pursuant to section 1170.95,
subdivision (d).
________________________
CHAVEZ, J.
We concur:
________________________ ________________________
LUI, P. J. ASHMANN-GERST, J.
11