Filed 3/14/22 P. v. Aguilera CA2/5
Opinion following transfer from Supreme Court
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B308311
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA352700)
v.
EDUARDO AGUILERA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Reversed and
remanded with directions.
Jonathan E. Demson, under appointment by 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, Noah P. Hill, Heidi Salerno and
Daniel C. Chang, Deputy Attorneys General, for Plaintiff and
Respondent.
Eduardo Aguilera appeals from the trial court’s order
denying his petition for resentencing under Penal Code section
1170.95 for his prior convictions of attempted murder and
voluntary manslaughter.1 He contends the trial court erred in
concluding section 1170.95 does not apply to his attempted
murder and voluntary manslaughter convictions. Due to an
intervening change in the law, the prosecution concedes the
statute now applies to those crimes. However, the prosecution
argues that the denial of defendant’s petition should nonetheless
be affirmed as the record establishes he is not eligible for relief as
a matter of law. We disagree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
On October 14, 2009, defendant was charged by
information with three counts: (1) the murder of Melissa Paul
(§ 187, subd. (a)); (2) conspiracy to commit murder (§ 182, subd.
(a)(1)); and (3) the attempted premeditated murder of Jorge
Chamu (§§ 664/187, subd. (a)). Gang and firearm enhancements
were also alleged with respect to each count (§§ 186.22, subd.
(b)(1)(C), 12022.53, subd. (d)).
On November 19, 2009, the information was amended to
allege a number of overt acts in support of the conspiracy count.
According to the overt acts, the prosecution was proceeding on
the following theory: Defendant, Gabriel Orozco, and others were
members of the same gang. On February 6, 2007, defendant,
Orozco and others took defendant’s minivan to an intersection
where they located victims Paul and Chamu walking together.
The driver pulled up near the victims; one of the conspirators
asked Chamu, “Where you from?” Someone in the minivan
1 All further statutory references are to the Penal Code.
2
yelled, “Just shoot them.” Orozco pointed a handgun out the
front passenger window and fired several gunshots, killing Paul.
The conspirators then fled and abandoned defendant’s minivan.
A few days later, defendant “bragged to a girl on a bus that he
and his homeboys were responsible for the murder.” Defendant
was not alleged to be the shooter; the charging allegations were
unclear as to whether he was alleged to be either the driver or
the person who shouted, “Just shoot them.” or both.
2. Defendant’s Plea
On September 30, 2010, pursuant to a negotiated plea, the
information was amended to add a count of voluntary
manslaughter (§ 192, subd. (a)). Defendant entered a plea of no
contest to voluntary manslaughter and attempted murder. He
admitted the gang enhancement and that a principal personally
and intentionally discharged a firearm (§ 12022.53, subds. (c) &
(e)(1)). Defendant’s counsel stipulated to a factual basis for the
plea “based upon the police reports and preliminary hearing
transcript.” The court sentenced defendant to 20 years in prison,
and dismissed the remaining counts. Defendant did not seek
appellate relief from his plea.
3. Defendant’s Section 1170.95 Petition
On March 28, 2019, defendant, representing himself, filed a
petition for resentencing under section 1170.95.
The prosecution opposed the petition on the basis that
defendant was convicted of manslaughter and attempted murder,
but relief under section 1170.95 was limited to murder
convictions. The prosecution also represented, “Should the court
deem the Petitioner eligible to pursue the petition for
resentencing, the People intend to submit supplemental briefing
based upon the record of conviction and additional new evidence,
3
and will prove beyond a reasonable doubt that the defendant
personally acted with malice aforethought when aiding and
abetting the killing of Melissa [Paul] and the attempted murder
of Jorge [Chamu]. To that end, the People would require an
extension of time to obtain the trial transcripts.” In its
opposition, the prosecution set forth a detailed account of the
facts of the crime and subsequent investigation, which was
purportedly “taken from prior pleadings filed related to the”
shooting. None of those documents were attached as an exhibit
to the prosecution’s opposition. Nor were there record citations in
its multi-page factual discussion.2 As the prosecution argued
only that section 1170.95 did not apply to convictions of
manslaughter and attempted murder, it did not rely on the
factual description for its argument.
On June 10, 2019, the court appointed counsel to represent
defendant. The court stated defendant’s reply to the
prosecution’s opposition was due 30 days from the date of its
order.
Defendant’s counsel moved for several successive
continuances, due to the press of business, personal reasons, and
– most importantly – the unavailability of the record.
Defendant’s counsel represented that the District Attorney had
agreed to make copies of discovery and the record available to
him, but delivery was repeatedly delayed. Due to the
2 For example, the prosecution set forth certain statements
attempted murder victim Chamu allegedly made to detectives
investigating the shooting. The prosecution notes, “This
interview was recorded on DVD.” Neither the DVD itself, nor a
transcript of the DVD, was provided to the trial court as part of
the opposition.
4
continuances, and pandemic-related court closures, it took over a
year for defendant’s counsel to file his reply. The reply was filed
on June 25, 2020. Counsel represented that he was still awaiting
the record, which would be necessary for further proceedings, but
felt able to brief the legal issue of the statute’s applicability to
manslaughter in its absence.3
On August 7, 2020, without holding a hearing, the court
denied defendant’s petition, concluding that section 1170.95
applies only to murder, not voluntary manslaughter or attempted
murder.
4. Appeal, Supreme Court Review, and Transfer
Defendant filed a timely notice of appeal. We affirmed the
denial, on the basis that section 1170.95 applied only to murder
convictions. (People v. Aguilera (Sept. 13, 2021, B308311)
[nonpub. opn.].) Defendant petitioned for Supreme Court review.
On November 23, 2021, the court granted review and transferred
the matter to this court, with directions to vacate our decision
and reconsider the cause in light of Senate Bill No. 775 (Stats.
2021, ch. 551). On November 30, 2021, we vacated our decision
and permitted the parties to submit further briefing. We now
reverse the denial of the section 1170.95 petition.
3 Counsel did, however, state an objection to the
“prosecution’s proposed factual basis by trial counsel at time of
plea as a basis for any factual assertions within police reports
and other non-records of conviction.” He made no argument in
support of this objection.
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DISCUSSION
1. Section 1170.95 Applies to Manslaughter and
Attempted Murder
Senate Bill No. 775 (2020-2021 Reg. Sess.), effective
January 1, 2022, amends section 1170.95 in several respects. As
relevant to this appeal, it specifically expands section 1170.95 to
apply to defendants convicted of attempted murder or
manslaughter. (Stats. 2021, ch. 551, § 2.) The Attorney General
concedes the effect of this amendment.
2. The Prosecution Has Not Established Defendant is
Ineligible for Relief as a Matter of Law
The Attorney General argues that we should uphold the
summary denial of relief on an alternative theory – one not
argued to the trial court – that defendant is ineligible for relief as
a matter of law because his convictions were necessarily
predicated on a theory of actual malice.
Section 1170.95 provides an opportunity for resentencing
for defendants who were convicted on a theory of felony murder
or natural and probable consequences; it also applies to
defendants who were convicted of murder, attempted murder, or
manslaughter by plea “in lieu of a trial at which [they] could have
been convicted of murder or attempted murder” on one of those
theories. (§ 1170.95, subd. (a)(2).)
When a defendant seeks resentencing under section
1170.95, the trial court is to review the petition for facial
sufficiency. If it is facially sufficient and defendant requests
counsel, the court must appoint counsel. (People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis).) Once counsel is appointed, the
matter is briefed and the court “shall hold a hearing to determine
whether the petitioner has made a prima facie case for relief. If
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the petitioner makes a prima facie showing that the petitioner is
entitled to relief, the court shall issue an order to show cause.”
(§ 1170.95, subd. (c).)
“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.” ’ [Citation.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citation.] ‘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.” ’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 971.)
Here, the Attorney General acknowledges defendant’s
petition alleged that he fell within the scope of the statute, in
that he entered his plea in lieu of going to trial where he could
have been convicted of murder on the basis of felony murder or
the natural and probable consequences doctrine. The court found
the petition facially sufficient and appointed counsel. Although
the court did not conduct a hearing to determine prima facie
eligibility, the Attorney General argues that the record
establishes defendant’s ineligibility as a matter of law.
Specifically, the Attorney General contends that the record of
conviction demonstrates that defendant was never charged with,
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or at risk of conviction of, murder under the felony-murder rule
or natural and probable consequences doctrine. The Attorney
General relies on the charges in the information and the
description of the crimes in the probation report to support its
conclusion that the theory of murder pursued against defendant
was always only actual malice murder, based on his intentional
aiding and abetting of the shooter with the intent to kill.
First, the Attorney General notes that defendant was
charged with conspiracy to commit murder, an offense requiring
an intent to kill. But conspiracy was not the only charge, and
defendant did not plead to it. When defendant entered his plea to
manslaughter, he was also facing the charge that he “unlawfully,
and with malice aforethought” murdered Paul. That “generic”
charge of murder did not limit the prosecution to any particular
theory. “[D]espite the fact that the indictment charged
[defendant] with murder committed with malice aforethought, it
allowed the prosecution to proceed on any theory of murder.”
(People v. Rivera (2021) 62 Cal.App.5th 217, 233 (Rivera), review
granted June 9, 2021, S268405.) We conclude that the language
of the information alone does not establish, as a matter of law,
that the murder charge against defendant was limited to a theory
of actual malice murder.
Second, the Attorney General relies on the crime as
described in the probation report to establish that defendant’s
guilt was, in fact, that of an aider and abettor with intent to kill –
and this was therefore the only theory which could have been
pursued by the prosecution. The showing is inadequate. When a
court is performing its review of a defendant’s prima facie
showing of eligibility, it cannot engage in factfinding, but can rely
only on readily ascertainable facts taken from the record of
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conviction. (People v. Davenport (2021) 71 Cal.App.5th 476, 481.)
Here, when defendant entered his plea, he stipulated that a
factual basis existed in the police reports and the preliminary
hearing transcript – neither of which is part of the record before
us.4 He did not stipulate to facts contained in the probation
report. When a defendant goes to trial, it is often easy to
determine, from a review of the jury instructions given, whether
the prosecution pursued a theory of felony murder or natural and
probable consequences. (Rivera, supra, 62 Cal.App.5th at p. 236.)
Here, we do not even have the preliminary hearing transcript,
which was stipulated to be a factual basis for defendant’s plea
and might have shed light on the theories asserted by the
prosecution.5
4 The Attorney General represents that the probation report
“relied on police reports.” This is true, but not the complete story.
The probation report has several boxes which can be checked
indicating the sources of information on any particular page. For
the report’s description of the facts, the boxes are checked for
“POLICE REPORT(S),” “DISTRICT ATTORNEY,” and “COURT
RECORDS.”
5 There is a dispute in the case law as to whether the absence
of a mention of felony murder or natural and probable
consequences in a preliminary hearing (or grand jury) transcript
is sufficient to establish as a matter of law that the defendant
was not facing exposure under those theories. (Compare People
v. Nguyen (2020) 53 Cal.App.5th 1154, 1166–1168 [when there is
no mention in the preliminary hearing transcript of any
underlying felony for felony murder or target crime for natural
and probable consequences, it is speculative to suggest the
prosecution would have pursued one of those theories] with
Rivera, supra, 62 Cal.App.5th at pp. 236–237 [disagreeing with
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We observe that in the prosecution’s brief in opposition to
the petition, it relied on a number of facts without record support
and represented it could supply that support if the matter
proceeded to an order to show cause. Defendant’s counsel waited
over a year to obtain a copy of the relevant records from the
district attorney, and ultimately submitted his reply brief on
purely legal issues without them. Under these circumstances, we
cannot say what is or is not readily ascertainable from the record:
We do not have it. An inference drawn from a probation report’s
factual representations, themselves taken from non-record
sources, is, in our view, not sufficient to defeat a prima facie
showing as a matter of law. Because the parties may submit
additional parts of the record at a section 1170.95, subdivision (c)
hearing, we remand for that purpose.
DISPOSITION
The order denying defendant’s petition for resentencing is
reversed and the matter remanded for the court to conduct a
hearing under section 1170.95, subdivision (c).
RUBIN, P.J.
WE CONCUR:
BAKER, J. KIM, J.
Nguyen, because the return of an indictment (or information)
based only on certain theories does not reflect a determination
that those are the only viable theories available].) We need not
take a position in this dispute.
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