Filed 1/27/22 P. v. Acedo CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B306027
(Super. Ct. No. VA069767)
Plaintiff and Respondent, (Los Angeles County)
v.
RICHARD ACEDO,
Defendant and Appellant.
Richard Acedo appeals a postjudgment order denying his
petition to vacate his murder conviction and to be resentenced
under Penal Code section 1170.95.1 The order was made prior to
the Supreme Court’s recent decision in People v. Lewis (2021) 11
Cal.5th 952 (Lewis), which clarified the rules regarding the
adjudication of resentencing petitions under section 1170.95.
At our request, the parties submitted supplemental briefing
discussing Lewis. Appellant contends “the matter should be
All statutory references are to the Penal Code unless
1
otherwise stated.
remanded for proceedings consistent with section 1170.95,
subdivision (c), as interpreted by the Court in [Lewis].” The
People maintain the trial “court properly denied the petition
because the record of conviction unquestionably establishes that
appellant is not entitled to relief as a matter of law.” We agree
with the People.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed recitation of the underlying facts is set forth in
our prior opinion in this case. (See People v. Acedo et al. (Nov. 20,
2007, B189837) [nonpub. opn.].) In short, appellant and a co-
defendant were jointly tried before a jury and convicted of
multiple crimes arising from a “gangbanging” incident.
Appellant was convicted of second degree murder (§§ 187, subd.
(a), 189), two counts of attempted premeditated murder (§§ 664,
187, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)), and
possession of cocaine (Health & Saf. Code, § 11350, subd. (a)).
The jury also found true firearm and gang enhancements that
were alleged as to each count. (§§ 186.22, subd. (b), 12022.53,
subds. (b)-(e).) The trial court sentenced appellant to a total
prison term of 157 years to life. We affirmed the conviction and
sentence. (People v. Acedo et al., supra, B189837).)
Following the enactment of section 1170.95, appellant filed
a pro per petition seeking to vacate his murder conviction and to
be resentenced under that section. Appellant alleged he was
convicted of “2nd degree murder pursuant to the felony murder
rule or the natural and probable consequences doctrine” and
requested the appointment of his trial counsel, Victor Salerno.
The trial court summarily denied the petition, finding
“[t]he appellate opinion affirming the petitioner’s conviction and
sentence reflects that the petitioner was convicted of murder on a
theory of being a direct perpetrator and not on a theory of felony
2
murder of any degree, or a theory of natural and probable
consequences.”
DISCUSSION
The Legislature enacted Senate Bill No. 1437 (SB 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);
Lewis, supra, 11 Cal.5th at p. 959.)
Lewis noted that SB 1437 changed the substantive law of
murder in two respects. (Lewis, supra, 11 Cal.5th at p. 959.)
First, it restricted the felony murder rule by amending section
189. That section now states that a person is liable for murder
for a death occurring during the commission of an enumerated
felony only if “(1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer in the commission of
murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless
indifference to human life . . . .” (§ 189, subd. (e).)
SB 1437 also abolished the natural and probable
consequences doctrine in murder cases by adding a limitation to
section 188, which defines malice for purposes of murder. Section
188 now provides that, except when the felony murder rule
applies, “in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed
to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)
3
Section 1170.95 is the procedural mechanism for
challenging a murder conviction obtained in contravention of
these new principles. Where, as here, the petition for relief
complies with the three procedural requirements of section
1170.95, subdivision (b), the trial court must assess whether the
petitioner has made “a prima facie showing” for relief.
(§ 1170.95, subd. (c).) If such a showing is made, the court must
issue an order to show cause and 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.” (§ 1170.95, subd. (d)(1).)
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.” (§ 1170.95, subd.
(d)(3); Lewis, supra, 11 Cal.5th at pp. 959-960.) “[T]he court may
consider evidence previously admitted at any prior hearing or
trial that is admissible under current law . . . . The prosecutor
and the petitioner may also offer new or additional evidence to
meet their respective burdens.” (§ 1170.95, subd. (d)(3).)
The principal issue in Lewis was whether this statutory
framework allows trial courts to reject a facially sufficient
petition for resentencing based on the record of conviction
without appointing counsel for the petitioner. Citing the
language and purpose of section 1170.95, Lewis held that trial
courts may consider the record of conviction in determining
whether the petitioner has made a prima facie case for
resentencing. (Lewis, supra, 11 Cal.5th at pp. 970-971.) The
court may not do so, however, without appointing counsel and
affording counsel an opportunity for briefing. (Id. at pp. 961-
4
970.) This latter requirement is not at issue here because
appellant was represented by counsel after he filed the petition.
Lewis further clarified that the bar for establishing a prima
facie case for resentencing is low, and that the trial court’s role in
determining whether that bar has been cleared is quite limited.
(Lewis, supra, 11 Cal.5th at pp. 970-972.) Although the trial
court may consider the underlying record of conviction, it must
accept the petitioner’s factual allegations as true and find in his
or her favor unless the record shows the petitioner is ineligible
for relief. (Ibid.)
Lewis cautioned that while prior appellate opinions are
part of the record of conviction, their probative value is “case-
specific” and “‘might not supply all the answers’” in determining
whether a petitioner is eligible for resentencing. (Lewis, supra,
11 Cal.5th at p. 972.) Only “‘if the record, including the court’s
own documents, “contain[s] facts refuting the allegations made in
the petition,”’” is the superior court “‘“justified in making a
credibility determination adverse to the petitioner.”’” (Id. at
p. 971, italics added.)
Neither the parties nor the trial court had the benefit of
these rules when appellant’s petition for resentencing was
adjudicated. The record reflects that the “petition and file” were
forwarded to the trial judge when the case was first assigned by
the supervising judge, but there is no evidence that the trial
judge considered anything beyond our opinion in People v. Acedo
et al., supra, B189837. Lewis strongly suggests that the appellate
opinion alone is insufficient to support a summary denial of the
petition. (Lewis, supra, 11 Cal.5th at pp. 971-972.)
The People point out that the prosecution’s opposition to
the petition asserted that “[b]ased on the entire record (the court
minutes, the opinion of the court of appeals [sic], the trial
5
transcript and the jury instructions, defendant Acedo was not
convicted of murder under [either of the applicable theories]. The
jury received no instructions as to either theory, nor did the
prosecution rely on either theory.”
The People assume the trial judge considered these
documents, particularly the jury instructions, because the case
file was forwarded to her when the case was first assigned. But
there is nothing in the record supporting this assumption. Both
the corrected minute order and the amended memorandum of
decision reference only “[t]he appellate opinion.”
The People ask us to resolve this evidentiary issue by
taking judicial notice of our appellate record in People v. Acedo et
al., supra, B189837. We deny that request, but find it
appropriate to review the superior court’s file, which we have
received from that court. On our own motion, we take judicial
notice of the portions of the file discussed below.2 (Evid. Code, §§
452, subd. (d), 459, subd. (a).)
The superior court’s file confirms that the jury was
instructed as follows: “[Defendant is accused [in Count 1]3 of
having committed the crime of murder, a violation [of section]
187 of the Penal Code.] [¶] Every person who unlawfully kills a
2 As required by Evidence Code section 455, subdivision (a),
we have advised the parties of our intent to take judicial notice of
the superior court documents referenced in this opinion, copies of
which were provided to counsel, and have given them a
reasonable opportunity “to present to the court information
relevant to (1) the propriety of taking judicial notice of the matter
and (2) the tenor of the matter to be noticed.” Neither party
submitted a response.
The jury instructions contain some superfluous brackets,
3
which we have included for the sake of accuracy.
6
[human being with malice aforethought] is guilty of the crime of
murder . . . . [¶] [A killing is unlawful, if it [was] [neither]
[justifiable] [nor] excusable]. [¶] In order to prove this crime,
each of the following elements must be proved: [¶] [1. A human
being was killed;] [¶] 2. The killing was unlawful; and [¶] 3. The
killing [was done with malice aforethought.]” (See CALJIC 8.10.)
The jury also was instructed that “[[m]alice is express when there
is manifested an intention unlawfully to kill a human being.] [¶]
[When it is shown that a killing resulted from the intentional
doing of an act with express . . . malice, no other mental state
need be shown to establish the mental state of malice
aforethought.]” (See CALJIC 8.11.)
The jury was further instructed, in part, that “[a]ll murder
which is perpetrated by any kind of willful, deliberate and
premeditated killing with express malice aforethought is murder
of the first degree.” (See CALJIC 8.20.) “Murder of the second
degree is . . . the unlawful killing of a human being with malice
aforethought when the perpetrator intended unlawfully to kill a
human being but the evidence is insufficient to prove deliberation
and premeditation.” (See CALJIC 8.30.)
The jury convicted appellant of second degree murder. It
found true the allegation that “[appellant] personally and
intentionally discharged a firearm, a handgun, within the
meaning of Section 12022.53(c) . . . .” The jury found that the
victim, who was shot seven times, was actually killed by a shot
from a co-defendant’s firearm.
The jury instructions and verdict demonstrate that
appellant was not convicted of felony murder or murder under
the natural and probable consequences doctrine. The jury was
instructed on first degree premeditated murder (CALJIC 8.20)
and second degree express malice murder (CALJIC 8.30). The
7
jury never received instructions on felony murder, aiding and
abetting or any target crime upon which murder on a natural and
probable consequences theory could be predicated (see CALCRIM
403). It necessarily follows that the jury could not have convicted
appellant based upon theory which was neither argued nor for
which it received any instructions.
A petitioner is ineligible for resentencing as a matter of
law if the prosecution proves the petitioner “was guilty of murder
under a theory still valid under California law.” (People v.
Duchine (2021) 60 Cal.App.5th 798, 816 (Duchine).) A valid
theory of murder requires express or implied malice. (§ 188,
subd. (b).) Because appellant was convicted on an express malice
theory of murder which survived SB 1437’s revisions to sections
188 and 189, he is ineligible for resentencing as a matter of law.
(§ 1170.95, subd. (a)(3); Duchine, at p. 816.) The trial court did
not err by denying his petition.
DISPOSITION
The order denying appellant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J. YEGAN, J.
8
Yvonne T. Sanchez, Judge
Superior Court County of Los Angeles
______________________________
Vanessa Place, 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, Scott A. Taryle, Supervising Deputy
Attorney General, and David A. Voet, Deputy Attorney General,
for Plaintiff and Respondent.
9