Filed 3/23/22 P. v. Arriola CA2/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B297120
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. PA030665)
v.
ALBERT ARRIOLA,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hayden A. Zacky, Judge. Reversed and
remanded with directions.
John L. Staley, 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, Supervising Deputy Attorney General, Idan Ivri, Deputy
Attorney General, for Plaintiff and Respondent.
____________________________
Based on his participation in a series of gang-related
shootings on July 12, 1998, Albert Arriola was convicted of,
among other crimes, four counts of attempted murder. (People v.
Arriola (July 28, 2000, B131255) at pp. 2-4 [nonpub. opn.]
(Arriola I).)1 In February 2019, Arriola petitioned the trial court
under Penal Code section 1170.95 to vacate his sentences for
attempted murder and resentence him on the remaining counts.2
The trial court summarily denied Arriola’s petition because, at
the time, section 1170.95 did not provide for resentencing based
on attempted murder convictions. We affirmed the trial court’s
order in a nonpublished opinion. (People v. Arriola (Apr. 1, 2020,
B297120) at p. 6 [nonpub. opn.] (Arriola II).) Arriola petitioned
the Supreme Court for review and the Supreme Court granted
and held the matter pending its review in another matter.
While Arriola’s case was pending in the Supreme Court, the
Legislature passed and the Governor signed Senate Bill No. 775
(S.B. 775), which amended section 1170.95 to include as eligible
for resentencing persons convicted of “attempted murder under
the natural and probable consequences doctrine.” (Stats. 2021,
ch. 551, § 2, subd. (a); § 1170.95, subd. (a).) In December 2021,
1 On December 30, 2021, Arriola filed a request in the
alternative that we take judicial notice of portions of the record
from his direct appeal or that we incorporate the record from his
direct appeal into this appeal. We grant Arriola’s motion to
incorporate the record from No. B131255 and deny his
alternative request for judicial notice as moot.
2 Further statutory references are to the Penal Code.
2
the Supreme Court transferred the matter back to this court with
directions that we vacate our opinion in Arriola II and reconsider
Arriola’s appeal in light of S.B. 775.
We agree with the parties that the trial court must
reconsider Arriola’s petition under the newly-amended section
1170.95. We will therefore reverse the trial court’s order and
remand with instructions to consider Arriola’s petition in light of
S.B. 775’s amendments to section 1170.95.
BACKGROUND
Arriola and a codefendant were convicted of shooting at a
person from a motor vehicle, four counts of attempted murder,
and conspiracy to commit murder, and found true a variety of
enhancement allegations based on a series of shootings on July
12, 1998. (Arriola I, supra, B131255 at p. 2.) The factual
background from Arriola’s direct appeal from his conviction
describes Arriola driving while his passenger shot at several
people, including two police officers who gave chase as Arriola’s
vehicle passed them while they were on patrol. (Id. at pp. 3-4.)
Arriola and his codefendant were charged with four counts
of attempted murder, including two counts—counts 6 and 7 in the
information—of attempted murder of peace officers engaged in
the performance of duty. With regard to those two counts
specifically, the jury was instructed that “[o]ne who aids and
abets another in the commission of a crime or crimes is not only
guilty of those crimes, but is also guilty of any other crime
committed by a principal which is a natural and probable
consequence of the crimes originally aided and abetted. [¶] In
order to find the defendant guilty of the crimes of attempted
murder, as charged in Counts 6 & 7, based on the theory of
natural & probable consequences[,] you must be satisfied beyond
3
a reasonable doubt that: [¶] 1. The crime or crimes of attempted
murder were committed; [¶] 2. That the defendant aided and
abetted those crimes; [¶] 3. That a co-principal in that crime
committed the crimes of attempted murder; and [¶] 4. The crimes
of attempted murder as charged in counts 6 & 7 were a natural
and probable consequence of the commission of the crimes of
attempted murder, as charged in [counts] 3 & 4.”
The jury found Arriola guilty of all four of the attempted
murder counts charged in the information. We affirmed Arriola’s
conviction on direct appeal in Arriola I.
In 2018, the Legislature enacted Senate Bill No. 1437 (S.B.
1437), which “amend[ed] the felony murder rule and the natural
and probable consequences doctrine, as it relates to murder . . . .”
(Stats. 2018, ch. 1015, § 1, subd. (f).) S.B. 1437 became effective
on January 1, 2019. Among other changes to the Penal Code, it
added section 1170.95, which created the procedure by which a
defendant could petition a trial court for relief under the
provisions of the then-new legislation. (Stats. 2018, ch. 1015,
§ 4.)
On February 25, 2019, Arriola filed a petition in the trial
court under section 1170.95 alleging that he had been convicted
of murder under the natural and probable consequences doctrine,
that he could no longer be convicted of murder because of changes
made to sections 188 and 189 by S.B. 1437, and requesting the
trial court to appoint counsel to represent him. The trial court
summarily denied Arriola’s petition, concluding that Arriola was
ineligible for relief as a matter of law because Arriola’s
convictions were “unaffected by” S.B. 1437. We affirmed the trial
court’s order in Arriola II.
4
Arriola petitioned the Supreme Court for review. The
Supreme Court granted Arriola’s petition and held the matter
pending decision in People v. Lopez, where the court granted
review to determine whether S.B. 1437 “appl[ies] to attempted
murder liability under the natural and probable consequences
doctrine,” among other questions. (See People v. Arriola (July 8,
2020, S261740), People v. Lopez (Nov. 13, 2019, S258175) [orders
granting petitions for review].)
On October 5, 2021, while this matter was pending in the
Supreme Court, the Governor signed S.B. 775, which became
effective January 1, 2022. As pertinent to this appeal, S.B. 775
amended section 1170.95 to include as eligible for resentencing
persons convicted of “attempted murder under the natural and
probable consequences doctrine.” (Stats. 2021, ch. 551, § 2,
subd. (a); § 1170.95, subd. (a).)
On December 22, 2021, the Supreme Court issued an order
transferring the matter back to this court “with directions to
vacate [our opinion] and reconsider the cause in light of [S.B.]
775.” Consistent with the Supreme Court’s order, we vacated our
opinion, and now issue this opinion reconsidering the cause in
light of S.B. 775.
DISCUSSION
As amended by S.B. 775, section 1170.95 allows one
“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 “file a
petition with the court that sentenced the petitioner to have the
petitioner’s murder, attempted murder, or manslaughter
5
conviction vacated and to be resentenced on any remaining
counts . . . .” (§ 1170.95, subd. (a), italics added.) “[P]etitioners
are entitled to the appointment of counsel upon the filing of a
facially sufficient petition . . . and . . . only after the appointment
of counsel and the opportunity for briefing may the superior court
consider the record of conviction to determine whether ‘the
petitioner makes a prima facie showing that he or she is entitled
to relief.’ ” (Lewis (2021) 11 Cal.5th 952, 957.)
S.B. 775 amended section 1170.95, effective January 1,
2022, to expressly include as eligible for resentencing those
convicted of “attempted murder under the natural and probable
consequences doctrine.” (Stats. 2021, ch. 551, § 2, subd. (a).) S.B.
775, therefore, appears to make a petition based on at least two of
Arriola’s convictions facially sufficient to invoke the trial court’s
duty to appoint counsel to represent Arriola under section
1170.95, subdivision (b)(3). Because Lewis established that a
section 1170.95 petitioner is entitled to the appointment of
counsel upon the filing of a facially sufficient petition, S.B. 775’s
amendments to section 1170.95 have rendered the trial court’s
denial of Arriola’s petition before appointing counsel erroneous
under section 1170.95 in its current form. (See Lewis, supra, 11
Cal.5th at p. 957.)
Lewis instructs us to also consider whether the trial court’s
error was prejudicial under People v. Watson (1956) 46 Cal.2d 818
(Watson). In this case, we conclude the error was prejudicial.
With regard to at least two of the attempted murder
charges—counts 6 and 7—the jury was instructed that in order to
find Arriola guilty, they would need to be satisfied beyond a
reasonable doubt that “[t]he crimes of attempted murder as
charged in counts 6 & 7 were a natural and probable consequence
6
of the commission of the crimes of attempted murder, as charged
in [counts] 3 & 4.” Based on the record of conviction, we cannot
conclude that Arriola is ineligible for relief as a matter of law as
to counts 6 and 7. (See Watson, supra, 46 Cal.2d at p. 836.)
Neither party has made any argument related specifically
to Arriola’s attempted murder convictions based on counts 3 and
4. We express no opinion about the merits of any section 1170.95
argument as it relates to those two counts. Rather, we leave it to
the trial court in the first instance to determine Arriola’s
eligibility for relief under section 1170.95 as to each of the four
attempted murder counts for which he was convicted.
DISPOSITION
The trial court’s order is reversed. On remand the trial
court will appoint counsel for Arriola and will conduct further
proceedings in accordance with section 1170.95. If the trial court
finds it necessary for purposes of considering Arriola’s petition
under section 1170.95 as amended by S.B. 775, the trial court will
allow Arriola to file a section 1170.95 petition that is consistent
with the provisions of section 1170.95 as amended by S.B. 775.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
7