Filed 2/25/22 P. v. Orozco CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B306916
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA090280)
v.
LUIS OROZCO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. James D. Otto, Judge. Reversed and remanded
with directions.
Law Office of Stein and Markus, Andrew Stein, Joseph
Markus; and Brentford Ferreira for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
In 2015, defendant and appellant Luis Orozco, along with
two codefendants, was convicted by a jury of the special
circumstance murder and robbery of Franklin Robles. Defendant
was sentenced to life without the possibility of parole. A panel of
this court affirmed defendant’s conviction in an unpublished
decision. (People v. Orozco (Dec. 14, 2018, B276130) [nonpub.
opn.].)
After the passage of Senate Bill 1437 (2017–2018 Reg.
Sess.) in 2018, defendant filed a petition for resentencing in
propria persona pursuant to Penal Code section 1170.95.
Section 1170.95 was enacted as part of the legislative changes
effected by Senate Bill 1437 and became effective January 1,
2019. (Stats. 2018, ch. 1015, § 4.) Defendant stated he was not
the actual killer, did not act with intent to kill, was not a major
participant and could not be convicted of murder in light of the
changes to murder liability effected by Senate Bill 1437.
Defendant also requested the appointment of counsel.
The court appointed defendant counsel and asked the
People to file a response. The People filed opposition and
defendant, through counsel, filed a reply.
On July 15, 2020, the court entertained argument from
counsel. Defendant waived his right to appear because of the
ongoing COVID-19 pandemic. The parties did not present new
evidence. During the hearing, the court and the parties agreed to
treat the hearing as an evidentiary hearing under Penal Code
section 1170.95, subdivision (d).
The court denied defendant’s petition, reasoning that “the
jury was well within its province to find that the defendant,
Mr. Orozco, the petitioner in this case, was a major participant
who acted with reckless indifference to human life.”
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Defendant appealed.
In October 2021, while this appeal was pending, the
Legislature passed Senate Bill 775 (2021–2022 Reg. Sess.) which,
among other things, amended the language of Penal Code
section 1170.95. (Stats. 2021, ch. 551, § 2.) As relevant here, the
statute was amended to expressly require a trial court conducting
an evidentiary hearing to sit as an independent factfinder and
assess the record and any new evidence offered by the parties
under the beyond a reasonable doubt standard of proof.
The record reflects the court did not act as an independent
factfinder. Had the court done so, there would have been no
reason to reference the jury’s decision.
The statutory language states: “[T]he burden of proof shall
be on the prosecution to prove, beyond a reasonable doubt, that
the petitioner is guilty of murder or attempted murder under
California law as amended by the changes to [Penal Code]
[s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subd. (d)(3).) The new text provides that a prior “finding that
there is substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (Ibid.)
The amendments also expand on the consideration of
evidence at the hearing, during which both sides may “offer new
or additional evidence to meet their respective burdens.” (Pen.
Code, § 1170.95, subd. (d)(3); see also People v. Gentile (2020)
10 Cal.5th 830, 855 [“section 1170.95 requires the superior court
to determine on an individualized basis, after considering any
new or additional evidence offered by the parties, whether the
defendant is entitled to relief”].)
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Accordingly, on remand, the trial court shall conduct a new
evidentiary hearing pursuant to Penal Code section 1170.95,
subdivision (d), as amended.
DISPOSITION
The order denying defendant’s petition for resentencing is
reversed and the case remanded to the superior court. On
remand, the superior court shall conduct a new evidentiary
hearing in accordance with Penal Code section 1170.95,
subdivision (d)(3), as amended.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
HARUTUNIAN, J.*
*
Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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