People v. Amador CA2/2

Filed 1/25/22 P. v. Amador CA2/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B305288

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA234510)
v.
OPINION ON REMAND
CARLOS M. AMADOR,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County. Kathleen Kennedy, Judge. Reversed and
remanded with directions.

Marilee Marshall, under appointment by the Court of
Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General and Theresa A. Patterson,
Deputy Attorney General, for Plaintiff and Respondent.
______________________________
 Pursuant to order by the California Supreme Court, we
vacate our original opinion and issue this opinion instead.
In 2003, defendant and appellant Carlos M. Amador
pleaded guilty to four counts of second degree murder (Pen. Code,
§ 187)1 and was sentenced to four concurrent terms of 15 years to
life in state prison.
On April 22, 2019, defendant filed a petition for
resentencing pursuant to section 1170.95. Following a hearing,
the trial court denied the petition, finding that defendant had not
stated a prima facie case for relief.
Defendant timely filed a notice of appeal. He argued that
because he established a prima facie case that he is potentially
eligible for resentencing relief, the trial court should have issued
an order to show cause and held an evidentiary hearing. On
January 29, 2021, we affirmed the trial court’s order, finding that
defendant was a major participant in the crimes and acted with
reckless indifference to human life. (People v. Amador (Jan. 29,
2021, B305288) [nonpub. opn.].) Defendant filed a petition for
review with the California Supreme Court, and on November 17,
2021, the Supreme Court granted his petition, and “transferred
[the case back] to the Court of Appeal, Second Appellate District,
Division Two, with directions to vacate its decision and to
reconsider the cause in light of People v. Lewis (2021) 11 Cal.5th
952, 971–972.”
On December 1, 2021, the People filed a supplemental
letter brief, conceding that “[a]lthough the evidence does not
appear to support [defendant’s contention] that he could not be

1 All further statutory references are to the Penal Code
unless otherwise indicated.

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convicted of murder under amended section 189, subdivision (e)[,]
it is not evidence that this claim fails as a matter of law.” Thus,
according to the People, “the trial court should have issued an
order to show cause and held a hearing in order to weigh the
evidence.”
We reverse the trial court’s order denying defendant’s
petition for resentencing and remand the matter for the trial
court to issue an order to show cause and hold an evidentiary
hearing pursuant to section 1170.95, subdivision (d).
FACTUAL BACKGROUND2
Just after 11:00 p.m. on May 4, 2002, Harish “Harry”
Kumar3 (Kumar) came home and discovered his home engulfed in
flames. Police officers and firefighters responded to the home.
Four members of Kumar’s family (his mother (Sitaben Patel
(Patel)), his wife (Gita Kumar (Gita)), and his two children (Paras
Kumar (Paras) and Tulsi Kumar (Tulsi))4 were found burned to
death in a bedroom near the entry of the home. Each victim was
bound in some fashion and had duct tape over his or her mouth

2 Because defendant pleaded guilty prior to trial, parts of
this factual background are taken from the transcript of his
preliminary hearing, a copy of which was attached to the
opposition to defendant’s resentencing petition. Other facts are
drawn from defendant’s testimony at codefendant Virenda
“Victor” Govin’s (Victor) trial.

3 Harry Kumar was also known as Harry Patel.

4 Because some of the victims and two of the perpetrators
share the same last names, for ease we refer to them by their
first names.

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and/or eyes. Fire investigators determined there were three
separate incendiary fires in the residence.
Kumar’s family owned the Universal City Inn in Studio
City. Gita was in charge of the business. Victor owned a hotel,
the Studio Place Inn, located directly adjacent to the Universal
City Inn. Victor had asked Kumar to sign papers giving him
rights to an easement in the alley. Kumar told Victor it would be
Gita’s decision. The Kumars and Victor both had expansion
projects that required use of the alley.
After seeing news coverage of the murders, Angelberto
Novoa (Novoa) contacted detectives and told them that six weeks
prior to the fire, individuals known to him as “Pedro” and
“Freddie” (later identified as defendant and Victor, respectively)
solicited him and a friend to go to the same house that was
burned to intimidate the people who lived there into signing
papers. Novoa said that he and Antonio Renteria met with
defendant, but ultimately declined to work with them.
Detectives interviewed Milton Salas (Salas), who described
a conversation he had with defendant. Defendant told Salas that
he had gone with two of his Indian friends (who owned hotels) to
a house to get documents signed, that “‘things got out of hand,’”
someone’s face had been seen, and one of them ordered that
everyone in the house be killed and the house burned. Defendant
said he took watches and/or jewelry from the house.
Detectives interviewed Droshawn Goodin, who told them
that defendant had asked him to be an alibi witness for the night
of the murders.
Video surveillance footage showed defendant’s truck
driving toward the victims’ residence around 9:00 p.m. on the

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date of the murders, and driving away from the residence shortly
after 11:00 p.m.
Defendant was arrested and interviewed by the police.
According to his preliminary hearing testimony, defendant
admitted his involvement in the crimes and identified Victor and
Pravin “Peter” Govin (Peter) as his coperpetrators. Defendant
said that on the night of the offense, he met Victor and Peter at a
restaurant around 6:00 p.m. They then drove together to the
victims’ house in defendant’s truck. Once there, Victor went up
to the door first. Peter and defendant, each armed with a gun,
went to the door some time later. Peter ordered the occupants of
the home, including Victor, to lay on the floor, as a home invasion
robbery being staged. Peter told defendant to go to one of the
bedrooms where the children would have been. Defendant went
into the bedroom of 18-year-old Paras. Victor subsequently
joined them and tied up Paras.
Defendant said that he and Victor also went to 16-year-old
Tulsi’s bedroom and tied her up as well. Both children were then
moved to another bedroom. Defendant said that he, Peter, and
Victor looked around the house for money.
Defendant stated that Patel and Gita were at one point
restrained in the living room; Peter repeatedly kicked and
shouted at Gita. Paras broke free from the bedroom and pleaded
with the men to stop attacking his mother. Peter and Victor then
assaulted Paras and restrained him again in the bedroom.
Defendant said that he told Peter and Victor that he had not
“signed on for this” and “wanted no part of it,” so he went outside
to his truck.
Within five minutes, Peter and Victor joined him.

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 Defendant offered a slightly different account of the events
when he testified at codefendant Victor’s trial. According to the
summary of that testimony, which was attached to the People’s
opposition to defendant’s resentencing petition, defendant
testified that he participated in the armed robbery at the Kumar
residence and helped bind the victims. Defendant also testified
that at Victor’s direction, he poured flammable liquid in the
master bedroom. At one point, defendant went to the bedroom
where the victims were tied up. When defendant questioned
Victor’s actions and asked why he was “‘killing them,’” Victor
replied, “‘Because she saw me.’” Defendant told Victor, “‘Okay. If
she saw you, why don’t you just kill her?’” Victor said that they
were all going to die. Defendant maintained that he left at that
point.
PROCEDURAL BACKGROUND
I. Defendant’s section 1170.95 petition
On April 22, 2019, defendant, through counsel, filed a
petition to be resentenced pursuant to section 1170.95. He
averred that an information 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;
he was convicted of second degree murder pursuant to the felony
murder rule or the natural and probable consequences doctrine;
and he could not now be convicted of murder because of changes
made to sections 188 and 189, effective January 1, 2019.
The People opposed the petition, arguing, inter alia, that
defendant was not entitled to relief because there was “more than
sufficient evidence in the record of conviction to sustain a first
degree murder conviction on a felony murder theory and a felony
murder special circumstance.” And, there was more than

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sufficient evidence that defendant acted with a conscious
disregard for human life, the mental state required for his second
degree murder convictions.
Defendant filed a reply brief, arguing that he did set forth a
prima facie case for relief. Thus, he requested that the trial court
set a hearing to determine whether to vacate his murder
conviction and resentence him.
II. Trial court’s order denying defendant’s petition
On January 17, 2020, the trial court entertained oral
argument and then denied defendant’s petition. After
summarizing the facts of the crimes (based on evidence from a
codefendant’s trial at which defendant testified), the trial court
concluded that defendant was a major participant who acted with
conscious disregard for life. The trial court explained: “[T]he
idea that he is not a major participant acting with reckless
disregard is comical because it’s just not true. [¶] And I think, as
the prosecutor said, he could have been convicted as an aider and
abettor. He could have, himself, gotten the death penalty on a
first degree murder conviction. And there’s clearly, clearly more
than enough to support the second degree [murder] convictions.
[¶] He should be counting his lucky stars every day that he is
alive. He is alive and [still] breathing. And four people are dead,
and largely because of his participation in those murders. [¶]
This is one of the most horrible cases that I have ever had, and I
wish that I could get it out of my mind. I wish I could not have
heard the horror and seen the photographs and the suffering of
these people that died. [¶] This case will be with me until I die.
And [defendant] has some time to think about it. [¶] I mean, if
he has been a model prisoner, and he is not really the criminal
that you say, perhaps the Department of Corrections will release

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him; I mean, he is eligible for parole by now I would imagine
because this trial was in 2003. So he has done, you know, 15
years. I mean—although the day that he walks out of prison, if
that day ever comes, watch out everybody. Because this is one of
the most dangerous people ever. And he doesn’t have a
conscience at all, and I think I mentioned that before. [¶]
Because how can you participate in this and then, if this is so
horrible that he says, you know, ‘I didn’t sign up for this,’ and he
leaves the house, why doesn’t he do something to save these
people? [¶] Nothing. He does nothing. He continues to assist
these people in getting away, in stealing the things that they
stole and everything. [¶] And there is no way that I find that the
defense has made a prima facie case in this case, so the 1437
petition is denied.”
DISCUSSION
I. Standard of Review
We review the trial court’s order de novo. (See Martinez v.
Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018
[application of law to undisputed facts]; A.S. v. Miller (2019) 34
Cal.App.5th 284, 290 [statutory interpretation].)
II. Relevant Law
Section 1170.95 provides a mechanism whereby people
“who believe they were convicted of murder for an act that no
longer qualifies as murder following the crime’s redefinition in
2019[] may seek vacatur of their murder conviction and
resentencing by filing a petition in the trial court.” (People v.
Drayton (2020) 47 Cal.App.5th 965, 973 (Drayton).) The statute
applies to persons convicted after trial and to persons who
entered a guilty plea. (§ 1170.95, subd. (a)(2); People v. Sanchez
(2020) 48 Cal.App.5th 914, 919 [“Specifying that section 1170.95

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applies to murder convictions both by trial and by guilty plea
clarifies that it does not matter how the murder conviction was
obtained for section 1170.95 to apply”].)
In order to obtain resentencing relief, the petitioner must
file a facially sufficient section 1170.95 petition. (§ 1170.95,
subds. (a)(1)-(3), (b)(1)(A).) If a petitioner does so, then the trial
court proceeds to section 1170.95, subdivision (c), to assess
whether the petitioner has made a prima facia showing for relief,
thereby meriting an evidentiary hearing. (People v. Lewis, supra,
11 Cal.5th at p. 957.) When making this determination, “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 . . . . [I]f 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 . . . 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 (such as determining whether the petitioner showed
reckless indifference to human life in the commission of the
crime).” (Drayton, supra, 47 Cal.App.5th at p. 980; see also
People v. Lewis, supra, at pp. 970–971.) In other words, a
defendant is ineligible for relief only where the record
conclusively shows that the jury actually relied—and the
defendant’s murder conviction actually rests—upon a theory of
liability that is unaffected by section 1170.95.

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 If the trial court determines that the petitioner has made a
prima facie showing of entitlement to relief, it must issue an
order to show cause. (§ 1170.95, subd. (c).) “[U]nless the parties
waive the hearing or the petitioner’s entitlement to relief is
established as a matter of law by the record[,]” the trial court
then holds a hearing at which “the burden of proof . . . shift[s] to
the prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (Drayton, supra,
47 Cal.App.5th at p. 981; see also § 1170.95, subd. (d)(1)-(3).)
III. Defendant is entitled to an order to show cause and
evidentiary hearing
The parties agree that defendant made a prima facie
showing of eligibility. After all, he filed a section 1170.95 petition
averring that (1) an information had been filed against him
allowing the prosecution to proceed under a theory of murder
under the felony murder rule or the natural and probable
consequences doctrine; (2) he was convicted of second degree
murder; and (3) he could not now be convicted of murder
following the amendments to sections 188 and 189. And, the
parties agree that after an examination of the record and briefing
by both parties, there was no evidence to indisputably show that,
as a matter of law, defendant was ineligible or not entitled to
relief.
Because defendant satisfied the prima facie stages of
section 1170.95, subdivision (c), the trial court was required to set
the matter for an order to show cause, with an evidentiary
hearing.

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 The trial court denied defendant’s petition on the grounds
that defendant was a major participant who acted with reckless
disregard in the commission of the horrific murders. But to have
made that determination, the trial court may have engaged in
some sort of “factfinding involving the weighing of evidence or the
exercise of discretion.” (Drayton, supra, 47 Cal.App.5th at
p. 980.) That is not permitted at the prima facie stages of the
proceedings. (Ibid.) Under these circumstances, an evidentiary
hearing—where the People bear the burden of proof beyond a
reasonable doubt—is required.5
In so holding, “[w]e express no opinion about [defendant’s]
ultimate entitlement to relief following the hearing. (§ 1170.95,
subd. (d)(2).)” (Drayton, supra, 47 Cal.App.5th at p 983.)

5 As the People point out in their respondent’s brief, while
“the record at present overwhelmingly supports” the fact that
defendant is not entitled to be resentenced, that finding cannot
be made until after an evidentiary hearing.

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 DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed. On remand, the trial court is directed to issue an order
to show cause (§ 1170.95, subd. (c)) and to hold an evidentiary
hearing to determine whether to vacate defendant’s murder
conviction and resentence him (§ 1170.95, subd. (d)).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.
ASHMANN-GERST

We concur:

________________________, P. J.
LUI

________________________, J.
CHAVEZ

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