Filed 4/28/22 P. v. Parada CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B311330
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA032211)
v.
ALFREDO PARADA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Kathleen Kennedy, Judge. Affirmed.
Janice Keiko Imata Blair, 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 Heidi Salerno, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Appellant Alfredo Parada appeals the denial of his petition for
resentencing under Penal Code section 1170.95.1 He contends the trial court
erred in finding that he failed to establish a prima facie case and therefore
was ineligible for relief as a matter of law. We conclude that the trial court
was entitled to rely on the record of conviction in denying the petition at the
prima facie stage. Moreover, any error was harmless, because the jury
instructions from the trial make clear that appellant’s convictions for murder
and attempted murder were not based on theories of felony murder or
natural and probable consequences. Consequently, he is ineligible for relief
under section 1170.95. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Crime
The facts and procedural history of appellant’s crime are drawn from
the opinion in the prior direct appeal by appellant and his co-defendant,
Walter Hernandez, People v. Hernandez (Aug. 25, 1994, BA024449) [nonpub.
opn.].
A. Evidence
On the afternoon of August 27, 1990, Lisa Ochoa and Evelyn Descali
were walking home from school. The girls stopped near an El Pollo Loco
restaurant on Vermont Avenue to talk to a friend, Julio Cabrera. Henry
Pineda, Jose Cabrera, and Moises Lozano were standing nearby. Suddenly,
one of the boys yelled a gang name, sounding like “Drifters,” and they started
running. Pineda testified at trial that he and some friends from his gang,
M.S., were on the corner of Olympic Boulevard and Vermont Avenue when he
saw two guys coming toward him. He immediately started running because
he was in his “enemies’ neighborhood.”
Ochoa testified that she heard two or three gunshots and ducked
between some cars. When she looked up, she saw Hernandez putting
something into the waistband of his pants. Descali suffered a fatal gunshot
wound to her head. Meanwhile, Pineda, Lozano, and the Cabreras ran away
1All further statutory references are to the Penal Code unless
otherwise indicated.
2
from the area. Julio Cabrera was shot in the back and sustained wounds
through his lung. Jose Cabrera was shot in his left foot.
Several days later, Ochoa identified a photograph of Hernandez as the
man who shot Descali. At trial, she initially identified Hernandez as a
shooter, but later stated she was “not sure.”
The manager of the El Pollo Loco testified that she heard gunshots,
looked out the drive-through window, and saw appellant shooting a gun
toward Vermont Avenue while Hernandez was “[l]ooking to the sides.” She
saw both men run through the alley next to the restaurant. At trial, the
manager identified both appellant and Hernandez as the men she had seen
fleeing from the scene of the shooting. An employee working at a nearby
clothing store testified that he also heard gunshots, looked out of the
doorway, and saw Hernandez and appellant running to the El Pollo Loco
parking lot. As Hernandez ran by, he shoved a silver gun into his waistband.
About an hour after the shooting, Los Angeles Police Department
officers saw appellant and Hernandez at an arcade that was a Drifters gang
“stronghold.” The officers took Hernandez and appellant in a police vehicle to
the crime scene. As they drove past the scene, appellant asked, “Was there a
shooting here?” Both appellant and Hernandez were identified by several
witnesses and were arrested.
After his arrest, appellant made a telephone call from the police
station. A police officer heard appellant say, “Pistola, hide it.”
Both Hernandez and appellant presented an alibi defense at trial.
Appellant, who was 16 years old at the time of the shooting, testified that at
the time of the shooting he was at someone’s home watching the “Gummi
Bears” cartoon on television. The prosecution presented evidence that
“Gummi Bears” was not on television at the day and time of the shooting.
B. Conviction
On April 29, 1992, the jury convicted appellant of one count of second
degree murder (§ 187, subd. (a)) and three counts of attempted murder as to
Julio Cabrera, Jose Cabrera, and Henry Pineda2 (§§ 664, 187, subd. (a)). As
2
Appellant’s opening brief on appeal states that he was convicted of
only two counts of attempted murder instead of three. The prosecution made
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to all four counts, the jury found true the allegation that appellant personally
used a firearm (§ 12022.5). In addition, as to two of the attempted murder
counts, the jury found true the allegation that appellant personally and
intentionally inflicted great bodily injury on the victim (§ 12022.7).3
In December 1992, the court sentenced appellant as follows: fifteen
years to life in state prison on count one (murder), plus four years for the
firearm enhancement; a consecutive term of seven years on count two
(attempted murder of Julio Cabrera), plus three years for the bodily injury
enhancement; a consecutive term of 28 months on count three (attempted
murder of Jose Cabrera), plus one year for the bodily injury enhancement;
and a consecutive term of 28 months on count four (attempted murder of
Pineda). The court stayed terms for the firearm enhancements on the
attempted murder counts.
C. Direct Appeal
Appellant and Hernandez appealed their convictions. After counsel for
appellant filed an opening brief that raised no issues, appellant submitted a
letter challenging several items of evidence and arguing that the evidence
was insufficient to support his conviction. We rejected appellant’s
contentions, noting that the evidence supporting his conviction was
“overwhelming” and the record did not support his other claims. We further
found after a review of the entire record that no arguable issues existed
pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. We therefore
affirmed appellant’s conviction.
II. Resentencing Petition
A. Petition and Briefing
On March 22, 2019, appellant filed a form petition for resentencing
under section 1170.95. The trial court appointed counsel for appellant and
directed the prosecution to respond to appellant’s petition.
the same statement in its opposition brief below. However, the record before
us—including verdict forms, the transcript of the sentencing hearing, and the
prior appellate opinion—demonstrates that appellant was convicted on three
counts of attempted murder.
3
Pineda, the victim on the third attempted murder count, was not
injured and the verdict form for that count did not include the allegation
regarding bodily injury.
4
In its opposition, the prosecution argued that appellant was ineligible
for relief under section 1170.95 because he was a direct aider and abettor in
the murder and attempted murders of which he was convicted and was not
convicted under the felony murder rule. Citing our appellate opinion, which
it attached as an exhibit, the prosecution argued that appellant was “an
actual shooter who acted with the intent to kill.” The prosecution also noted
the jury’s findings that appellant personally used a firearm and personally
and intentionally inflicted great bodily injury in two of the attempted murder
counts.4 The prosecution also attached as exhibits the verdict forms and the
transcript of the sentencing hearing.
In his reply, appellant argued that he had made a prima facie showing
of eligibility by filing a “properly completed 1170.95 petition and declaration”
and “based on the entire record of conviction.” Appellant attached as an
exhibit a single page of reporter’s transcript, purportedly from the
prosecution’s closing argument at trial. Therein, the prosecutor argued that
if the jury could not determine which of the two defendants shot Descali, “the
law covers that too. . . . [W]hen a principal is liable for the action of someone
he aids and abets.”
B. Hearing
On October 9, 2020, the court found appellant had made a prima facie
showing of eligibility and issued an order to show cause. Appellant
subsequently waived his appearance for the resentencing hearing. At a
status hearing on January 15, 2021, the prosecution provided additional
exhibits to the court, including transcripts from the prior appeal and the
complete jury instructions. The jury was not instructed on felony murder or
the natural and probable consequences doctrine. Appellant did not submit
any further evidence.
The court heard appellant’s petition on February 8, 2021. The
prosecution argued that “although we are at OSC, the lower threshold of even
a prima facie case hasn’t been met. Now that the record is before the court, it
shows that the jury wasn’t instructed on either the natural and probable
consequences doctrine or the felony murder rule. So 1170.95 is not
4
The prosecution also argued that the statute was unconstitutional,
but later withdrew that contention.
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applicable.” Appellant’s counsel responded that he had set forth his position
in his briefing and had “nothing further to add. The court has the record.”
The court denied the petition, stating, “[T]his is one of those cases that
I think came up while we were on lockdown. . . . When I was working from
home for a few months earlier this year, I didn’t have access to court files.
And so I just appointed counsel on cases that, if I had a chance to review the
court file, [I] would not have. Because I don’t think that this falls within
1170.95 after reviewing all the materials, including the jury instructions that
were submitted by counsel from the trial itself, as well as, I think there was a
copy of the appellate opinion.” The court thus found that appellant had not
established a prima facie case for relief. Appellant timely appealed.
DISCUSSION
I. Senate Bill 1437 and Section 1170.95
“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘to
amend the felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, 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. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) “In addition to
substantively amending sections 188 and 189 of the Penal Code, Senate Bill
1437 added section 1170.95, which provides a procedure for convicted
murderers who could not be convicted under the law as amended” to file a
petition seeking resentencing.5 (Ibid., citing People v. Gentile (2020) 10
Cal.5th 830, 838-839.) A facially adequate petition entitles a petitioner to the
appointment of counsel and a response from the prosecution. (§ 1170.95,
subds. (b)(1), (c); Lewis, supra, 11 Cal.5th at p. 970.)
With the benefit of the parties’ briefing, “the court proceeds to
subdivision (c) to assess whether the petitioner has made ‘a prima facie
showing’ for relief. (§ 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at p.
5
Senate Bill No. 775 (Stats. 2021, ch. 551), effective January 1, 2022,
amended section 1170.95 to apply to those convicted of “attempted murder
under the natural and probable consequences doctrine.” (§ 1170.95, subd. (a);
see also id. subds. (a)(1)-(a)(3).)
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960.) “[T]he ‘prima facie bar was intentionally and correctly set very low.’”
(Id. at p. 972.) “[A]t the prima facie stage, a petitioner’s allegations should be
accepted as true, and the court should not make credibility determinations or
engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’” (Id. at p. 974, quoting People v. Drayton (2020) 47 Cal.App.5th
965, 980 (Drayton).) “‘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.”‘“ (Lewis, supra, 11 Cal.5th at p. 971, quoting Drayton, supra,
47 Cal.App.5th at p. 979.) As amended by Senate Bill 775, section 1170.95,
subdivision (c) provides, in pertinent part: “If the court declines to make an
order to show cause, it shall provide a statement fully setting forth its
reasons for doing so.” (Stats. 2021, ch. 551, § 2; § 1170.95, subd. (c).)
If the court determines that the petitioner has made a prima facie
showing for relief, it must issue an order to show cause. (§ 1170.95, subd. (c);
Lewis, supra, 11 Cal.5th at p. 971.) The court must then hold an evidentiary
hearing to determine whether to vacate the murder conviction (§ 1170.95,
subd. (d)(1)), at which “[t]he prosecutor and the petitioner may rely on the
record of conviction or offer new or additional evidence to meet their
respective burdens” (§ 1170.95, subd. (d)(3)). At the hearing stage, “the
burden of proof shall be on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd.
(d)(3).)
II. Analysis
Appellant argues the trial court improperly denied his petition at the
prima facie stage after reviewing the underlying record of conviction and
finding he was precluded from relief as a matter of law. “This is a purely
legal conclusion, which we review de novo.” (See People. v. Murillo (2020) 54
Cal.App.5th 160, 167-168, review granted Nov. 18, 2020, S264978; People v.
Turner (2020) 45 Cal.App.5th 428, 435.)
A defendant is ineligible for relief as a matter of law where the record
conclusively shows that the jury actually relied upon—and the defendant’s
murder or attempted murder conviction actually rests upon—a theory of
liability that is unaffected by section 1170.95 (that is, on the theory that the
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defendant was the actual shooter or directly aided and abetted the shooter).
(§ 1170.95, subd. (a)(3); see also People v. Nguyen (2020) 53 Cal.App.5th 1154,
1157, 1167-1168 [petitioner not entitled to relief where he was convicted as
direct aider and abettor].) As part of the record of conviction, the trial court
may consider the prior appellate opinion, jury instructions, verdict form(s),
and any special findings or enhancement allegations the jury found true to
determine if the petition makes a prima facie showing of entitlement to relief.
(Lewis, supra, 11 Cal.5th at p. 957; People v. Duchine (2021) 60 Cal.App.5th
798, 815; see also People v. Jenkins (2021) 70 Cal.App.5th 924, 935; People v.
Soto (2020) 51 Cal.App.5th 1043, 1055 (Soto) [the trial court may “rely on the
jury instructions, which are part of the record of conviction, in assessing the
prima facie showings under section 1170.95(c)”], overruled on another ground
by Lewis, supra, 11 Cal.5th at p. 957; People v. Daniel (2020) 57 Cal.App.5th
666, 677 (Daniel) [court may consult the jury instructions], review granted
Feb. 24, 2021, S266336, review dismissed December 1, 2021.)
Here, the jury instructions conclusively demonstrate appellant is
ineligible for relief. Where “no instructions were given on felony murder or
murder under the natural and probable consequences doctrine,” the
defendant is “not ‘[a] person convicted of felony murder or murder under a
natural and probable consequences theory,’ and he is therefore ineligible for
relief as matter of law.” (Daniel, supra, 57 Cal.App.5th at p. 677; see also
Soto, supra, 51 Cal.App.5th at p. 1059 [“Soto did not make a prima facie
showing that he is entitled to relief under section 1170.95 because the jury
instructions given at his trial conclusively demonstrate as a matter of law
that he was not convicted of murder under a natural and probable
consequences theory or of felony murder”]; People v. Tarkington (2020) 49
Cal.App.5th 892, 899, overruled in part on another ground by Lewis, supra,
11 Cal.5th at pp. 962-963 [record showed defendant was the actual killer
where jury instructions did not include any instruction on natural and
probable consequences or felony murder and the jury found the defendant
personally used weapon]; People v. Edwards (2020) 48 Cal.App.5th 666, 674-
675, overruled in part on another ground by Lewis, supra, 11 Cal.5th at pp.
962-963 [absence of jury instructions on felony murder or natural and
probable consequences doctrine justified summary denial of petition].)
8
Appellant does not dispute that the trial court was entitled to consider
the record of conviction at the prima facie stage. Instead, he contends that
the record of conviction “does not conclusively establish as a matter of law”
that he was ineligible and that the court improperly “evaluated and weighed
the evidence.”
While we agree that weighing the evidence and factfinding are
impermissible at the prima facie stage (see Lewis, supra, 11 Cal.5th at pp.
970-972), we reject appellant’s argument that the court did so here. Instead,
the record of conviction shows that appellant was not convicted of murder or
attempted murder under a felony murder or natural and probable
consequences theory. In addition to the fact that the jury was not instructed
on those theories, the jury found that appellant had personally used a
firearm as to all four counts and had personally and intentionally inflicted
great bodily injury on the two attempted murder victims who sustained
gunshot wounds. As such, the jury necessarily concluded that appellant
acted as the shooter and/or directly aided and abetted the murder and
attempted murders. (See, e.g., People v. Tarkington, supra, 49 Cal.App.5th at
p. 899 [finding as a matter of law that the defendant was the actual killer
including because of the “jury’s finding that Tarkington personally used a
deadly and dangerous weapon”]; People v. Verdugo (2020) 44 Cal.App.5th
320, 330, overruled on another ground by Lewis, supra, 11 Cal.5th at pp. 962-
963 [“The record of conviction might also include other information that
establishes the petitioner is ineligible for relief as a matter of law . . . for
example, a petitioner who . . . was found to have personally and intentionally
discharged a firearm causing great bodily injury or death in a single victim
homicide”].) Appellant points to no evidence suggesting otherwise. The
record thus established appellant’s ineligibility for relief as a matter of law
and the trial court did not err in denying appellant’s petition without holding
the full order to show cause hearing.
Appellant also contends that the trial court erred because it did not
clearly indicate that it was relying on the jury instructions or other evidence
as the basis for its ruling. As such, he argues that the court failed to “provide
a statement fully setting forth its reasons” for declining to issue an order to
show cause, as required under the newly amended section 1170.95,
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subdivision (c). We are not persuaded. The trial court specifically referred to
the jury instructions in concluding that appellant had not met his burden to
make a prima facie showing, and explained that the court had not been able
to review the record when making the original prima facie finding. Even
assuming that the court’s statements on the record were inadequate, the
error was harmless because the record of conviction, including the jury
instructions, shows appellant was ineligible for relief under section 1170.95
as a matter of law.
Under the harmless error standard, a section 1170.95 petitioner must
“‘demonstrate there is a reasonable probability that in the absence of the
error he . . . would have obtained a more favorable result.’ [Citations.]”
(Lewis, supra, 11 Cal.5th at p. 974.) Appellant cannot meet this burden.
Section 1170.95 applies to “[a] person convicted of felony murder or murder
under a natural and probable consequences theory.” (§ 1170.95, subd. (a).)
On his section 1170.95 petition, appellant checked the box stating, “At trial, I
was convicted of 1st or 2nd degree murder pursuant to the felony murder rule
or the natural and probable consequences doctrine.” However, he does not
dispute that his jury was not instructed on felony murder or the natural and
probable consequences doctrine. Thus, appellant cannot demonstrate that
absent any error, there is a reasonable probability that the trial court would
have found a prima facie case for relief.
DISPOSITION
The order denying appellant’s section 1170.95 petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J. WILLHITE, J.
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