Filed 1/18/22 P. v. Romero-Luna CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE, B311736
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA054111-01)
v.
SAUL ROMERO-LUNA,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County. Michael V. Jesic, Judge. Reversed and
remanded with directions.
Jonathan E. Demson, 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, Kristen J. Inberg and Nima Razfar,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Saul Romero-Luna was convicted in 2008 following a jury
trial of three counts of attempted willful, deliberate and
premeditated murder (Pen. Code, §§ 187, subd. (a), 664)1 and
one count of shooting at an occupied vehicle (§ 246) with true
findings on criminal street gang (§ 186.22, subd. (b)(1)(C)) and
firearm enhancement allegations (§ 12022.53, subds. (b), (c) &
(e)). On March 3, 2021 the superior court summarily denied
Romero-Luna’s petition for resentencing under section 1170.95,
ruling Romero-Luna was ineligible for relief because he had been
convicted of attempted murder, not murder.
While Romero-Luna’s appeal was pending, the Legislature
enacted Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 551, § 2) (Senate Bill 775), effective January 1, 2022, which
amended section 1170.95 to expressly include within its reach
certain convictions for attempted murder and voluntary
manslaughter. In light of this new legislation, we remand
Romero-Luna’s case for the superior court to appoint counsel and
to determine in accordance with the procedures described in
section 1170.95, subdivision (c), and People v. Lewis (2021)
11 Cal.5th 952 (Lewis) whether Romero-Luna has made a
prima facie showing he is entitled to relief.
FACTUAL AND PROCEDURAL BACKGROUND
1. Romero-Luna’s Convictions for Attempted Murder
Our opinion affirming Romero-Luna’s judgment of
conviction (with a minor modification in the award of presentence
1 Statutory references are to this code.
2
custody credits) describes the evidence presented at his joint trial
with codefendant Jesus Augustine Cabrera (People v. Cabrera
(Sept. 16, 2010, B215543) [nonpub. opn.]). On the afternoon of
November 11, 2006, while Donte Robinson, Rafael McBride and
Jason Green were working on a car in the parking lot of an
apartment building on Roscoe Boulevard in Canoga Park where
Robinson and McBride lived, Robinson saw a man jump the fence
and come toward him. Robinson became concerned and got into
his own car, which was parked nearby, and told McBride and
Green to get into the car as well. As Robinson was driving to the
parking lot gate, he heard a gunshot. A man, subsequently
identified as Cabrera, was standing there, shooting a revolver at
them.
When Robinson drove his car out of the gate, he saw one or
two men standing near a red car and other men inside the car.
Gunshots continued as Robinson drove down the alley. Green
turned and saw the red car approaching Robinson’s car and a
man standing through the red car’s sunroof, firing a shotgun at
them. Robinson was eventually able to get away from the red
car. Romero-Luna was identified as the driver of the red car.
The apartment complex where the incident began was
located in territory claimed by the Canoga Park Alabama gang,
known for its anti-Black sentiments. Robinson, McBride and
Green are Black. The evidence indicated Romero-Luna and
Cabrera were members of, or associated with, the Canoga Park
Alabama gang.
The jury convicted Romero-Luna and Cabrera of three
counts of attempted willful, deliberate and premediated murder
and one count of shooting at an occupied motor vehicle. The jury
also found true the allegations a principal had personally used
3
and intentionally discharged a firearm in the commission of the
attempted murders and all the offenses had been committed for
the benefit of a criminal street gang. The trial court sentenced
Romero-Luna and Cabrera each to aggregate indeterminate state
prison terms of 81 years to life.
2. Romero-Luna’s Petition for Resentencing
On February 22, 2021 Romero-Luna, representing himself,
filed a 12-page typewritten petition and declaration for
resentencing (plus excerpts from the trial record attached as
exhibits), averring he had been convicted of attempted murder, at
least in part, on theories of vicarious liability, was factually
innocent and could not now be convicted of attempted willful,
deliberate and premediated murder because of changes to
sections 188 and 189 by Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437). Romero-Luna
requested appointment of counsel to represent him during the
resentencing process.
The superior court summarily denied the petition on
March 3, 2021 without appointing counsel or requesting a
response to the petition from the prosecutor. In its order denying
the petition, the court took judicial notice of records from Romero-
Luna’s trial, which established he had been convicted of
attempted murder, and ruled, “Because the defendant was not
convicted of murder, Penal Code section 1170.95 does not apply to
him.”
DISCUSSION
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
4
(Gentile)) and significantly narrowing the felony-murder
exception to the malice requirement for murder. (§§ 188,
subd. (a)(3), 189, subd. (e)(3); see Lewis, supra, 11 Cal.5th at
p. 957.) 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.)
There was disagreement among the courts of appeal
whether new section 188, subdivision (a)(3)’s prohibition against
imputing malice to establish liability for murder other than in
specified felony-murder cases also precluded finding a defendant
guilty of attempted murder under the natural and probable
consequences doctrine. Notwithstanding that conflict, all courts
of appeal recognized that, by its express terms, section 1170.95 as
enacted by Senate Bill 1437 did not authorize a petition to vacate
an attempted murder conviction.
As amended effective January 1, 2022 by Senate Bill 775,
however, section 1170.95, subdivision (a), now provides, “A
person convicted of felony murder or murder under the natural
and probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime, attempted murder under the natural
and probable consequences doctrine, or manslaughter may file a
petition with the court that sentenced the petitioner to have the
petitioner’s murder, attempted murder, or manslaughter
5
conviction vacated and to be resentenced on any remaining
counts . . . .”2
In his reply brief Romero-Luna argues, with the passage of
Senate Bill 775, the order summarily denying his petition for
resentencing should be reversed and the cause remanded with
directions to the superior court to appoint counsel and to
thereafter reconsider his petition consistent with the provisions
of section 1170.95 as newly amended.3
2 In an uncodified statement of its intent in enacting Senate
Bill 775, the Legislature declared the legislation “(a) Clarifies that
persons who were convicted of attempted murder or manslaughter
under a theory of felony murder and the natural probable
consequences doctrine are permitted the same relief as those
persons convicted of murder under the same theories. [¶]
(b) Codifies the holdings of People v. Lewis (2021) 11 Cal.5th 952,
961-970, regarding petitioners’ right to counsel and the standard for
determining the existence of a prima facie case. [¶] (c) Reaffirms
that the proper burden of proof at a resentencing hearing under this
section is proof beyond a reasonable doubt. [¶] (d) Addresses what
evidence a court may consider at a resentencing hearing (clarifying
the discussion in People v. Lewis, supra, at pp. 970-972).”
(Stats. 2021, ch. 551, § 1.)
3 In his opening brief Romero-Luna argued the superior
court’s summary denial of his petition without appointment of
counsel violated the plain language of section 1170.95,
subdivision (c), as well as his right to due process. He also
argued Senate Bill 1437 applied to accomplice liability for
attempted murder, not just murder, and the contrary
interpretation of the legislation would violate his right to equal
protection. The Attorney General in his respondent’s brief
argued any error in not appointing counsel was harmless because
Romero-Luna was ineligible for relief as a matter of law and
6
In a supplemental letter brief filed at the request of this
court, the Attorney General urges us to affirm the superior
court’s order denying Romero-Luna’s petition, arguing Romero-
Luna remains ineligible for resentencing as a matter of law
notwithstanding Senate Bill 775’s amendment of section 1170.95
and any errors committed by the superior court, therefore, were
necessarily harmless. (See People v. Mancilla (2021)
67 Cal.App.5th 854, 859.) In support the Attorney General, citing
excerpts from the trial record, states Romero-Luna’s jury was not
instructed on the natural and probable consequences theory of
aiding and abetting for attempted murder. Rather, the Attorney
General contends, “the only theory of attempted murder on which
the jury was instructed required malice aforethought by
appellant personally. [Citation.] The prosecutor relied upon that
theory during closing argument.”
The incomplete record from Romero-Luna’s trial that is
part of the record on appeal is not nearly as clear as the Attorney
General would have it.4 Although no instruction on the natural
and probable consequences doctrine or felony-murder rule was
given, in closing argument, as Romero-Luna (although self-
represented) pointed out in his petition, the prosecutor suggested
the jury could find Romero-Luna—the driver of the red car, not
one of the shooters—guilty of attempted murder based on a
theory of vicarious liability (imputed malice). Explaining aiding
and abetting, the prosecutor stated: “You have . . . here, multiple
excluding individuals convicted of attempted murder from Senate
Bill 1437’s ameliorative provisions was constitutional.
4 Neither Romero-Luna nor the Attorney General requested
that we augment the record on appeal with the full record of
Romero-Luna’s trial.
7
parties acting together to commit a crime, instigating,
encouraging, helping out. It’s a team effort by these gang
members to commit a crime. So just some terminology. The
principals in the bank robbery situation, the guy who goes in the
bank is a principal. The getaway driver is a principal too, aider
and abettor. Everybody involved is called a principal. There’s
your long definition, that persons involved in committing crime
are referred to as principals in that crime. Each principal,
regardless of intent or manner of participation is equally guilty.”
(Italics added.) To be sure, the prosecutor subsequently stated
aiders and abettors “are persons who know the intent—have the
intent to commit the crime and intend to help commit the crime,”
and the trial court instructed pursuant to CALJIC No. 3.01 that
an aider and abettor must have acted “with knowledge of the
unlawful purpose of the perpetrator.” But the prosecutor’s
inconsistent statements could have been compounded when the
court also instructed the jury, using former CALJIC No. 3.00,
that “[e]ach principal, regardless of the extent or manner of
participation is equally guilty”—an instruction that “could be
misleading if the principals in a particular case might be guilty of
different crimes and the jury interprets the instruction to
preclude such a finding.” (People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 443; accord, People v. Amezcua and Flores
(2019) 6 Cal.5th 886, 918.)5
5 Additional jury confusion as to the mens rea required to
convict Romero-Luna of attempted murder might also have been
created by the difference between the modified versions given of
CALJIC No. 8.66, defining the elements of attempted murder,
and CALCRIM No. 965, defining the elements of shooting at an
occupied vehicle. The former instruction explained that, to find
the “defendants” (plural) guilty, the People had to prove “one
8
It may well be that Romero-Luna will be unable to
establish a prima facie case for relief when the issue is fully
developed in the superior court. But under section 1170.95 as
now amended by Senate Bill 775, he is entitled to attempt to
make that showing with the assistance of counsel.
DISPOSITION
The postjudgment order denying Romero-Luna’s
section 1170.95 petition is reversed. On remand the superior
court is to appoint counsel for Romero-Luna, order the prosecutor
to file a response to the petition, provide Romero-Luna an
opportunity to file a reply and determine whether Romero-Luna
has made a prima facie showing that he is entitled to relief in
accordance with section 1170.95, subdivision (c), as amended by
Senate Bill 775.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
person” did a direct but ineffectual act toward killing another
human being. In contrast, the latter instruction required, to find
“the defendants” guilty, the People had to prove “[t]he defendants
willfully and maliciously shot a firearm at an occupied motor
vehicle,” arguably suggesting the nature of aider and abettor
liability was different between the two offenses.
9