Filed 2/17/22 P. v. Reyna CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B309517
(Super. Ct. No. A950076)
Plaintiff and Respondent, (Los Angeles County)
v.
FRANK JOE REYNA,
Defendant and Appellant.
Frank Joe Reyna appeals from the order denying his
petition for resentencing pursuant to Penal Code section
1170.95.1 He contends the trial court erred when it summarily
denied his petition without issuing an order to show cause. We
agree and reverse.
1 Further unspecified statutory references are to the Penal
Code.
FACTUAL AND PROCEDURAL HISTORY
Preliminary Hearing Transcript
In 1987, a witness was standing in the street with a
group of people when he saw a car approaching. The witness
heard someone yell “Frogtown” immediately before several
gunshots were fired from the car. One person was killed, and two
people were injured. The witness identified the codefendant as a
passenger in the car. He testified that the car belonged to either
Reyna or his codefendant.
A jailhouse informant testified that he spoke to
Reyna while he was in custody. On direct examination, the
informant testified that Reyna said “he shot the man.” On
cross-examination, the informant said Reyna said “he shot at”
two people, but did not say anyone was hit.
Plea and Sentence
The People charged Reyna and his codefendant with
one count of murder (§ 187, subd. (a)) and two counts of
attempted murder (§§ 187/664). The information alleged that
Reyna and his codefendant were principals armed with a firearm.
(Former § 12022, subd. (a).) As to the codefendant only, the
information alleged that he personally used a firearm (§ 1203.06,
subd. (a)(1)) and personally inflicted great bodily injury
(§ 12022.7).
Reyna pled no contest to second degree murder and
admitted the allegation that he was a principal armed with a
firearm. (§§ 187, subd. (a), former 12022, subd. (a).) Reyna
stipulated to the factual basis for his plea based on the
preliminary transcript and/or police reports. He was sentenced to
15 years to life.
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Petition for Resentencing
In 2019, Reyna filed a petition for resentencing
pursuant to section 1170.95. At his request, counsel was
appointed. Reyna’s counsel alleged that the record presented
“sufficient facts to conclude that [Reyna] was not the actual killer
and he could only have been convicted at a trial under a theory of
natural and probable consequences” and that there was “no
credible evidence demonstrating that he had malice, either
express or implied, during the course of the acts.”
The trial court summarily denied the petition. It
ruled that Reyna failed to make a prima facie showing of
eligibility for relief.
DISCUSSION
Reyna contends the trial court erred when it
summarily denied the petition without issuing an order to show
cause. We agree.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended
the felony murder and the natural and probable consequences
doctrines 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); People v. Gentile (2020) 10 Cal.5th 830, 842
(Gentile).) The Legislature added section 188, subdivision (a)(3),
to state that with the exception of felony murder under section
189, subdivision (e), “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);
Stats. 2018, ch. 1015, § 2.) The Legislature also amended section
189, subdivision (e), to require that to be convicted of felony
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murder, a defendant must be the actual killer, an aider or abettor
to the murder and acted with the intent to kill, or “a major
participant in the underlying felony and acted with reckless
indifference to human life.” (§ 189, subd. (e); Stats. 2018, ch.
1015, § 3.)
Section 1170.95 provides a procedure to persons
previously 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” to
obtain retroactive relief. (§ 1170.95; Gentile, supra, 10 Cal.5th at
p. 853.)
To be eligible for resentencing, a defendant must
establish that “(1) A complaint, information, or indictment was
filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder, 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, or attempted murder under the
natural and probable consequences doctrine. [¶] (2) The
petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a
trial at which the petitioner could have been convicted of murder
or attempted murder [and] [¶] (3) The petitioner 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).)
If the petition meets the requirements of section
1170.95, subdivisions (a) and (b), the trial court proceeds to
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subdivision (c), which provides that “[a]fter the parties have had
an opportunity to submit briefings, the court shall hold a hearing
to determine whether the petitioner has made a prima facie case
for relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to
show cause. If the court declines to make an order to show cause,
it shall provide a statement fully setting forth its reasons for
doing so.” (§ 1170.95, subd. (c).)
In determining whether the petition has made a
prima facie showing, the trial court may examine the record of
conviction “to distinguish petitions with potential merit from
those that are clearly meritless.” People v. Lewis (2021) 11
Cal.5th 952, 971 (Lewis).) “While the trial court may look at the
record of conviction after the appointment of 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.”’ [Citations.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘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.”’” (Ibid.)
In “reviewing any part of the record of conviction at
this preliminary juncture, a trial court should not engage in
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‘factfinding involving the weighing of evidence or the exercise of
discretion.’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 972.) The
“‘prima facie bar was intentionally and correctly set very low.’”
(Ibid.)
Here, Reyna filed a facially sufficient petition setting
forth a prima facie case for relief. (§ 1170.95, subd. (b).) Thus,
“‘absent a record of conviction that conclusively establishes that
[Reyna] engaged in the requisite acts and had the requisite intent
[for a murder conviction under the current law], the trial court
should not question [the petitioner’s] evidence’” in the first stage
review. (People v. Rivera (2021) 62 Cal.App.5th 217, 230
(Rivera).)
The record of conviction does not conclusively
establish that Reyna was ineligible for relief. Reyna was
convicted of second degree murder, which is the unlawful killing
of a human being with malice aforethought but without the
additional elements, such as willfulness, premeditation, and
deliberation, that would support a first degree murder conviction.
(§§ 187, 189; People v. Knoller (2007) 41 Cal.4th 139, 151.) “It is
undisputed that a conviction of second degree murder does not, in
and of itself, bar a petition under section 1170.95.” (Rivera,
supra, 62 Cal.App.5th at p. 232; Gentile, supra, 10 Cal.5th at p.
847.) Before Senate Bill No. 1437 was enacted and at the time of
Reyna’s conviction, a person could be convicted of second degree
murder without acting with express or implied malice; instead,
malice could be imputed to a defendant under the felony murder
or natural and probable consequences theory. (Gentile, at p. 847.)
Thus, Reyna’s plea to second degree murder was not
an admission that he acted with express or implied malice that
would render him ineligible for relief. (See Rivera, supra, 62
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Cal.App.5th at p. 224.) Nor did the principal-with-a-firearm
allegation necessarily include an admission that he was the
actual killer or acted with actual malice. Notably, the
information only alleged that Reyna’s codefendant, and not
Reyna himself, personally used a firearm and personally inflicted
great bodily injury. (See in contrast People v. Perez (2020) 54
Cal.App.5th 896, 907, review granted Dec. 9, 2020, S265254
[record of conviction showed the defendant was the actual killer,
acted alone, and admitted an allegation that he personally used a
weapon in the commission of the murder].)
Moreover, nothing in the preliminary hearing
transcript conclusively refutes the allegations in the petition.
Reyna’s stipulation to the factual basis for his plea based on the
preliminary hearing transcript and/or police report constituted
only an admission to the elements of the charged offenses. It was
not an admission of the truth of the facts. (People v. French
(2008) 43 Cal.4th 36, 50-52; see also People v. Palmer (2013) 58
Cal.4th 110, 118-119.) The transcript also provided conflicting
evidence on the identity of the actual killer and left open the
possibility of a murder conviction based on the natural and
probable consequences theory. Because the record of conviction
does not definitively refute the allegations, the trial court was
required to issue an order to show cause. (§ 1170.95, subd. (c).)
This case is like Rivera, supra, 62 Cal.App.5th 217, in
which Rivera and a codefendant were indicted on one count of
murder with malice aforethought with gang and lying-in-wait
special circumstances allegations. (Id. at pp. 224-225.) The
evidence suggested that Rivera was present when his
codefendant (a fellow gang member) shot the victim, and Rivera
drove the codefendant to and from the scene. (Id. at p. 224.)
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Rivera pled no contest to second degree murder and admitted the
gang allegation. (Id. at p. 225.) After Senate Bill No. 1437 was
enacted, Rivera petitioned for resentencing (§ 1170.95), which the
trial court denied. (Rivera, at pp. 226-227.)
The Court of Appeal reversed, concluding that “a plea
to murder ‘with malice aforethought’ is not categorically
incapable of making a prima facie showing of eligibility for relief
. . . because such a plea is not necessarily an admission that the
crime was committed with actual malice.” (Rivera, supra, 62
Cal.App.5th at p. 224.) Rivera “made no admissions related to
the murder other than pleading no contest to the count as
charged.” (Id. at p. 234.) Thus, the record of conviction reflected
“no basis on which to infer that Rivera admitted to acting with
actual malice.” (Id. at p. 235.) Similarly here, Reyna did not
admit, nor does the record definitively show, that he acted with
express or implied malice.
The Attorney General argues that the record of
conviction refutes the argument that the prosecution proceeded
under a natural and probable consequences or felony murder
liability theory (§ 1170.95, subd. (a)(1)) because Reyna was not
charged with an underlying crime that would suggest those
theories of liability and there was no evidence at the preliminary
hearing of such an underlying crime. (See People v. Nguyen
(2020) 53 Cal.App.5th 1154, 1166-1168 [no “relief as a matter of
law” where the preliminary hearing transcript showed that the
only theory was that the defendant was a direct aider and abettor
to murder and the record was “devoid” of any underlying crime
that would support a natural and probable consequences theory].)
Rivera rejected a similar argument. The court in
Rivera noted that although “a murder conviction after a plea has
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just as much ‘weight and finality’ as one after a trial [citation],
this does not mean that the theory underlying each type of
conviction can be ascertained with the same degree of certainty.”
(Rivera, supra, 62 Cal.App.5th at p. 236 [declining to follow
Nguyen, supra, 53 Cal.App.5th at pp. 1166-1167].) The record of
conviction after a plea will “generally lack any comparable
assurance [to that of a record after trial] of the basis for the
conviction.” (Rivera, at p. 237.) The court in Rivera disagreed
“that relief under section 1170.95 is precluded as a matter of law
simply because there is no mention in the preplea record of an
underlying offense that could support liability for felony murder
or murder under the natural and probable consequences
doctrine.” (Id. at p. 238.) Rather, “when a petitioner disputes
that the evidence presented at a preplea proceeding demonstrates
his or her guilt under a still-valid theory of murder, and ‘“no
readily ascertainable facts”’ definitively prove otherwise, a trial
court cannot deny a petition at the prima facie stage without
resorting to ‘“factfinding involving the weighing of evidence or the
exercise of discretion.”’ [Citations.]” (Ibid.)
We agree with Rivera. That the district attorney did
not charge Reyna with an underlying offense supporting a felony
murder or murder under the natural and probable consequences
theory did not preclude it from prosecuting Reyna on those
theories if the case proceeded to trial. (See Rivera, supra, 62
Cal.App.5th at p. 238.) We note that section 1170.95, subdivision
(e) contemplates a scenario in which the conviction shall “be
redesignated as the target offense or underlying felony for
resentencing purposes” if “murder . . . was charged generically”
and “the target offense was not charged.” This suggests that
there are instances in which a district attorney prosecuted
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murder on a felony murder or natural or probable consequence
theory, but did not charge or prosecute the underlying offense.
On this record, the trial court could not deny the
petition without engaging in factfinding and weighing of
evidence. Where, as here, a petition is facially sufficient, the
court “shall issue an order to show cause.” (§ 1170.95, subd. (c),
italics added.)
DISPOSITION
The order denying the petition is reversed and
remanded with directions to the trial court to issue an order to
show cause and conduct further proceedings pursuant to section
1170.95, subdivision (d).
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Robert C. Vanderet, Judge
Superior Court County of Los Angeles
______________________________
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,
Assistant Attorney General, Daniel C. Chang and Ryan M.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.