Filed 3/1/22 P. v. Herrera CA2/7
Opinion following transfer from Supreme Court
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B301607
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA066571)
v.
ANTHONY HERRERA,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Patrick E. Connolly, Judge. Affirmed.
Cynthia L. Barnes, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill,
Supervising Deputy Attorney General, Charles S. Lee and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff
and Respondent.
__________________
Anthony Herrera, convicted after a jury trial in 2004 of
attempted murder and robbery, appealed the summary denial of
his petition for resentencing under Penal Code section 1170.95,1
contending the superior court had erred in ruling section 1170.95
did not apply to attempted murder and denying his petition
without appointing counsel and conducting a hearing at which
the parties could present evidence. We affirmed the order based
on prior decisions from this and other courts of appeal that had
rejected identical arguments.
After granting Herrera’s petition for review, the Supreme
Court transferred the case to us with directions to vacate our
prior decision and reconsider Herrera’s appeal in light of Senate
Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill 775) and People v.
Lewis (2021) 11 Cal.5th 952 (Lewis).
In supplemental briefing Herrera argues, based on the new
legislation and the Supreme Court’s decision in Lewis, the case
should be remanded for the superior court to appoint counsel,
issue an order to show cause and conduct an evidentiary hearing.
The Attorney General agrees section 1170.95 resentencing relief
is now available to certain individuals convicted of attempted
murder and it was error not to appoint counsel following
Herrera’s filing of a facially sufficient petition. However, the
Attorney General contends those errors were harmless and no
remand is necessary because Herrera was convicted as a direct
perpetrator of the attempted murder and is ineligible for
1 Statutory references are to this code.
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resentencing relief as a matter of law. We agree and affirm the
postjudgment order denying Herrera’s petition.
FACTUAL AND PROCEDURAL BACKGROUND
As summarized in our opinion on direct review affirming
Herrera’s convictions for attempted murder (§§ 187, subd. (a),
664) and second degree robbery (§ 211), the evidence at trial
established that Herrera, acting alone, robbed Federico Mendez
at gunpoint and then shot him when he said he had no more
money. Mendez required surgery for the gunshot wound to his
stomach. (People v. Herrera (Feb. 14, 2006, B173384) [nonpub.
opn.].) In addition to convicting Herrera of attempted murder
and robbery, the jury found true special allegations Herrera had
personally used a firearm during the offenses (§ 12022.53,
subds. (b) & (d)). Following a remand by this court to correct
sentencing error, the trial court sentenced Herrera to an
aggregate indeterminate state prison term of 40 years to life.
We affirmed the judgment. (People v. Herrera (Dec. 18, 2007,
B194531) [nonpub. opn.].)
On August 22, 2019 Herrera, representing himself, filed a
petition for resentencing under section 1170.95. Checking boxes
on the preprinted form petition, Herrera declared under penalty
of perjury that he had been convicted of first or second degree
murder pursuant to the felony-murder rule or the natural and
probable consequences doctrine. Herrera requested appointment
of counsel during the resentencing process.
The superior court summarily denied the petition on
September 3, 2019, ruling Herrera was ineligible for resentencing
as a matter of law because he had not been convicted of murder.
Herrera filed a timely notice of appeal, and we affirmed the
postjudgment order in our prior opinion.
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DISCUSSION
1. Senate Bill No. 1437, Senate Bill 775 and the
Section 1170.95 Petition Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (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) and significantly narrowing the felony-murder
exception to the malice requirement for murder. (§§ 188,
subd. (a)(3), 189, subd. (e); 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 now be convicted of murder because
of Senate Bill 1437’s changes to the definitions of the crime.
(See Lewis, at p. 957; Gentile, at p. 843.) As amended by Senate
Bill 775, effective January 1, 2022, these ameliorative changes to
the law now expressly apply to attempted murder and voluntary
manslaughter.
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief (§ 1170.95, subd. (b)(1)(A)), the court must
appoint counsel to represent the petitioner, if requested
(§ 1170.95, subd. (b)(3)),2 and direct the prosecutor to file a
response to the petition, permit the petitioner to file a reply and
2 Prior to enactment of Senate Bill 775 the requirement to
appoint counsel was set forth in subdivision (c) of section 1170.95.
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determine if the petitioner has made a prima facie showing that
he or she is entitled to relief. (§ 1170.95, subd. (c); see Lewis,
supra, 11 Cal.5th at pp. 962-963.)
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder, attempted murder or manslaughter conviction and
resentence the petitioner on any remaining counts. (§ 1170.95,
subd. (d)(1).) At the hearing the prosecutor has the burden of
proving, “beyond a reasonable doubt, that the petitioner is guilty
of murder or attempted murder under California law as amended
by the changes to Section 188 or 189 made effective January 1,
2019.” (§ 1170.95, subd. (d)(3).) The court may consider evidence
previously admitted at any prior hearing or trial “that is
admissible under current law,” including testimony and
stipulated evidence. (Ibid.) The petitioner and the prosecutor
may also offer new or additional evidence. (Ibid.)
2. The Error in Denying Herrera’s Petition Without
Appointing Counsel Was Harmless
Under Lewis, supra, 11 Cal.5th 952, decided two months
after our original decision affirming the order summarily denying
Herrera’s petition for resentencing, once a petitioner files a
facially sufficient petition under section 1170.95 and requests
appointment of counsel, the superior court must appoint counsel
before performing any prima facie review under section 1170.95,
subdivision (c). (Lewis, at p. 963 [“petitioners who file a
complying petition requesting counsel are to receive counsel upon
filing of a compliant petition”].) And among other changes,
Senate Bill 775 amended section 1170.95, subdivision (a), to
expressly permit relief for petitioners convicted of “attempted
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murder under the natural and probable consequences doctrine” if
they could not now be convicted of attempted murder because of
changes to sections 188 and 189 effected by Senate Bill 1437. In
light of Lewis and Senate Bill 775, it was error to summarily
deny Herrera’s petition for resentencing relief. However, a
remand is not necessary in this case.
Although the superior court may not engage in judicial
factfinding or make credibility decisions prior to issuing an order
to show cause, under Lewis, supra, 11 Cal.5th at page 971, “[t]he
record of conviction will necessarily inform the trial court’s prima
facie inquiry under section 1170.95, allowing the court to
distinguish petitions with potential merit from those that are
clearly meritless.” The Lewis Court also held a superior court’s
failure to appoint counsel to represent a petitioner when
assessing whether he or she has made a prima facie showing of
entitlement to relief pursuant to section 1170.95, subdivision (c),
is state law error only, reviewable for prejudice under the
harmless error standard of People v. Watson (1956) 46 Cal.2d
818. (Lewis, at pp. 957, 973-974.) Specifically, “a petitioner
‘whose petition is denied before an order to show cause issues has
the burden of showing “it is reasonably probable that if [he or
she] had been afforded assistance of counsel his [or her] petition
would not have been summarily denied without an evidentiary
hearing.”’” (Id. at p. 974.)
As discussed, the record of conviction, including the jury’s
finding that Herrera had personally and intentionally discharged
a firearm proximately causing great bodily injury during the
attempted murder, established that Herrera, acting alone, robbed
Mendez and then shot him when Mendez said he had no more
money. Indeed, in his supplemental brief following the Supreme
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Court’s transfer order, Herrera acknowledges he “robbed and shot
the victim.” As the sole perpetrator of the two offenses, Herrera
is ineligible for resentencing relief under section 1170.95 as a
matter of law because he remains guilty of attempted murder
under California law as amended by the changes to sections 188
and 189 made by Senate Bill 1437 and Senate Bill 775.
(See People v. Mancilla (2021) 67 Cal.App.5th 854, 864 [petitioner
is ineligible for relief as a matter of law if the record of conviction
establishes he or she was not convicted under a theory of liability
affected by Senate Bill 1437’s amendments to the law of
murder].)
Because there is no reasonable probability Herrera would
obtain a more favorable result if the matter were remanded and
counsel appointed and given the opportunity to file a
memorandum supporting the petition, the court’s errors in
denying Herrera’s petition were harmless. (See People v. Watson,
supra, 46 Cal.2d at p. 836.)
DISPOSITION
The order denying Herrera’s petition for resentencing is
affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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