Filed 5/9/22 P. v. Mejia CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079996
Plaintiff and Respondent,
(Madera Super. Ct. No. MCR02252)
v.
JESUS ALVAREZ MEJIA, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Mitchell C.
Rigby, Judge.
Deanna Lamb, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P. J., Meehan, J. and De Santos, J.
INTRODUCTION
Appellant Jesus Alvarez Mejia1 was charged and convicted of count 1, first degree
murder, and count 2, attempted first degree murder, with firearm enhancements.
Appellant was sentenced to indeterminate life terms on the convictions and
enhancements.
In 2019, appellant filed a petition for resentencing pursuant to Penal Code2 section
1170.95 and alleged his murder conviction was based on the felony-murder rule and/or
the natural and probable consequences doctrine, and he was not the actual killer. The
superior court denied the petition.
On appeal, his appellate counsel has filed a brief which summarizes the facts with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has filed his own
supplemental brief. We affirm.
FACTS3
Rogelio Fernandez-Tovar (Rogelio) owned property in Madera County on which a
barn and corrals were situated and used for horse training. On the morning of June 11,
1999, Silviano Fernandez-Tovar (Silviano), Rogelio’s brother, was working a horse on
the property. Alfredo Guzman (Guzman), who also kept a horse on the property, arrived
about 9:30 a.m.
1 Appellant’s name appears in various ways throughout the record. The abstract of
judgment and the opinion filed in appellant’s prior appeal use the name Jesus Alvarez
Mejia. To be consistent, we will do the same; no disrespect is intended.
2 All further statutory citations are to the Penal Code unless otherwise indicated.
3 This court granted appellant’s motion to take judicial notice of the record in his
appeal from his convictions and sentence in People v. Mejia (July 29, 2002, F038504
[nonpub. opn.].) Appellant’s petition and the People’s opposition relied on the facts as
stated in this court’s prior opinion. The factual and procedural background herein are
from this court’s prior opinion. We provide these facts for background purposes but do
not rely on these facts in resolving the issues presented in this appeal. (See § 1170.95,
subd. (d)(3).)
2.
Between 11:30 a.m. and 12:00 p.m., Francisco “Chico” Tovar arrived,4 and
appellant and one or two other people were also there. Appellant sought to make a deal
with Guzman whereby appellant would trade his van for one of Guzman’s horses.
Guzman did not want to trade, but appellant was insistent, and Guzman eventually agreed
to the deal.
Later, appellant proposed a wager where the ownership of both the horse and the
van would be decided by a toss of a coin. Again, Guzman did not want to wager, but was
eventually persuaded. Guzman won the toss of the coin. Appellant became angry at the
results and, after arguing awhile, challenged Guzman to a fight. Guzman refused to fight,
and appellant eventually walked away with Chico, and they went to appellant’s house,
which was nearby.
About 7:00 p.m., Guzman and Rogelio went to get some chicken from the store.
When they returned, several people sat in the shade of some trees and ate and drank beer.
About an hour later, they heard shots. Immediately thereafter, Flor Figueroa (Figueroa),
appellant’s then-girlfriend, warned the group: “Be careful because [appellant has]
already killed one man and wants to kill the other one.”
Soon thereafter, appellant ran up to Guzman, pointed an automatic pistol at
Guzman’s chest, and pulled the trigger three times. The gun did not fire because it had
jammed. Appellant pointed the pistol at two other people, but the gun did not fire.
Rogelio and Silviano tackled appellant, disarmed him, and held him until the sheriff’s
officers arrived.
Chico had been shot twice and died from the bullet wounds. Dr. Jerry Nelson, a
pathologist, testified either of the two gunshot wounds would have been fatal. Dr. Nelson
testified the first gunshot entered through the shoulder and exited through the mouth; this
4We use the decedent’s nickname (Chico) and the first names of his brothers
Silviano Fernandez-Tovar (Silviano) and Rogelio Fernandez-Tovar (Rogelio), to avoid
confusion and to be consistent with the use of names in the record so far as is possible.
No disrespect is intended.
3.
trajectory would have been an unlikely result if there had been a hand-to-hand struggle.
Dr. Nelson testified the second gunshot entered at the back of the head and could not
possibly have been inflicted as a result of a hand-to-hand struggle. Dr. Nelson stated the
second shot was more consistent with the theory that Chico was facing away from
appellant when the shot was fired.
Figueroa’s Testimony
At the preliminary hearing, Figueroa testified to events surrounding the shooting
of Chico. Between the time of the preliminary hearing and the trial, she moved to
Mexico and did not return for the trial. The trial court found she was unavailable, and her
testimony from the preliminary hearing was read into evidence under the former
testimony exception to the hearsay rule.
Figueroa testified at the preliminary hearing that she and appellant’s brother were
at the residence that she shared with appellant. Appellant came home with Chico. After
going for a swim and eating some food, appellant told Figueroa he lost the van in a wager
involving the toss of a coin. Figueroa walked over to Rogelio’s property where the others
were, to talk to some of the women about what had happened. She suggested to the other
women that the men should talk over what had happened the following day when they
were sober.
As Figueroa was walking back, she met appellant, Chico, and Chico’s son.
Appellant and Chico were arguing or talking loudly, and Chico was ordering appellant to
return to the house. Figueroa overheard appellant say that if Chico did not let go of him,
he was going to kill Chico. Chico responded by saying, “[K]ill me, kill me.”
Figueroa saw appellant pull out the pistol he was carrying. She testified that the
two men started wrestling over the pistol. She ran for help and heard shots when she was
too far away to see what had happened. Figueroa testified that she did not see the shots
fired. She ran back to the residence with appellant’s son, who called the police.
4.
Defense Case
Appellant testified at trial that he made a deal with Guzman, trading his trailer for
Guzman’s horse. Appellant also testified there had been a winner-take-all bet on the flip
of a coin, but claimed Guzman called off the bet while the coin was in the air.
Appellant testified that after he had finished swimming and eating, he went
outside to look for his children and saw Chico by the open door to the pool house. When
appellant approached, he saw the pistol inside a box in the pool house. Appellant
claimed he sold the pistol to Chico’s father. Appellant testified he took the pistol, stuck it
in his waistband, and started off with the intent of returning both the pistol and Chico to
Chico’s father’s house.
Appellant testified that Chico, for reasons that are not clearly explained, tried to
grab the pistol from appellant, and a wrestling match ensued. The pistol fell to the
ground, and they both tried to pick it up. Appellant testified the gun went off when he
was poked in the eye during the wrestling match.
Appellant denied he ever pulled the trigger on the pistol or intended for it to go
off. He claimed the firing of the pistol was an accident and that he did not intend to hurt
anyone. The closing argument of appellant’s counsel was consistent with his testimony
that the pistol accidentally discharged.
PROCEDURAL BACKGROUND
On August 25, 1999, an information was filed in the Superior Court of Madera
County charging appellant with count 1, first degree murder of Chico (§ 187, subd. (a)),
and count 2, attempted first degree murder of Guzman (§§ 664, 187, subd. (b)), with
firearm enhancements (§ 12022.53, § 12022.5).
Convictions and Sentencing
On April 19, 2001, after a jury trial, appellant was convicted of count 1, first
degree murder, with enhancements that he personally and intentionally discharged a
firearm causing death (§ 12022.53, subd. (d)), and personal use of a firearm (§ 12022.5,
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subd. (a)); and count 2, attempted first degree murder, with enhancements for personal
use of a firearm (§ 12022.53, subds. (b), (e)(1), § 12022.5, subd. (d)).
On June 11, 2001, the court sentenced appellant to 10 years for the
section 12022.53 firearm enhancement attached to count 2, plus life in prison with the
possibility of parole for count 2, attempted first degree murder; with a consecutive term
of 25 years to life for count 1, first degree murder; and another consecutive term of 25
years to life for the section 12022.53 firearm enhancement. The court stayed the terms
for the section 12022.5 enhancements.
Appellant’s Direct Appeal
On July 29, 2002, this court affirmed appellant’s convictions and sentence. On
appeal, appellant argued the trial court improperly admitted Figueroa’s testimony under
the former testimony exception to the hearsay rule. This court agreed that the
prosecution failed to demonstrate due diligence in their efforts to secure Figueroa’s
presence at trial, but concluded the error was harmless beyond a reasonable doubt under
Chapman v. California (1967) 386 U.S. 18, 24.
“Figueroa’s prior testimony was, at most, equivocal with respect to
[appellant’s] guilt or innocence. Her testimony tended to confirm most of
[appellant’s] account of what [appellant] did from the time he went back to
his house until he headed back toward the group with Chico. Figueroa’s
testimony contradicted [appellant’s] only where she testified Chico was
trying to direct [appellant] back to his house and [appellant] threatened to
kill Chico if he did not stop trying to restrain [appellant]. Consistent with
[appellant’s] testimony, Figueroa testified she saw the two wrestling over
possession of the gun. She did not actually see the gun go off. Figueroa’s
testimony was thus not inconsistent with [appellant’s] general defensive
theory that there had been a struggle for the gun, which was accidentally
and unintentionally discharged.
“The central issue in the trial on Chico’s murder was whether the
killing was intentional or accidental. Far more damaging to [appellant’s]
theory of an accidental shooting was Guzman’s testimony of [appellant’s]
attempt to shoot him and Silviano’s testimony that he heard Figueroa warn
everyone that [appellant] had killed Chico and was going to kill Guzman.
6.
Silviano also testified that when [appellant] was asked why he killed Chico,
[appellant] replied ‘I killed [Chico] because he sang it to me,’ which
Silviano interpreted to mean because Chico persistently tried to prevent
[appellant] from causing trouble with Guzman. The ballistics testimony
also provided strong evidence upon which the jury could have rested its
finding that the shooting was not accidental.
“Thus, the volitional nature of the killing was established by
evidence of [appellant’s] statements that was independent of, and less
equivocal than, Figueroa’s testimony. We conclude the jury’s finding that
the shots that killed Chico were fired intentionally rested firmly on
evidence other than Figueroa’s prior testimony. To the extent Figueroa’s
prior testimony provided evidence that the killing was intentional, the
evidence was merely cumulative. Figueroa’s testimony, being both
ambiguous and equivocal, was harmless beyond a reasonable doubt.”
(People v. Mejia, supra, F038504, at pp. 11–12.)
This court rejected appellant’s second argument and held the trial court did not
erroneously refuse his request for an instruction on imperfect self-defense.
“[Appellant’s] theory of the case is clear: he was trying to take the
pistol back to Chico’s father, he and Chico started wrestling for possession
of the pistol, and the pistol discharged accidentally which caused Chico’s
death. [Appellant] specifically denied pulling the trigger and specifically
denied intentionally discharging the pistol.
“[Appellant’s] theory focuses on causation, not on the presence or
absence of criminal intent. In other words, [he] did not ask the jury to
believe that he shot Chico because he had an honest but unreasonable fear
of being hurt or killed; he asked the jury to believe that he did not shoot
Chico at all. He asked the jury to believe the pistol was accidentally and
unforeseeably discharged as a result of a struggle by each to get the pistol
away from the other. [Appellant] did not mention, either in his own
testimony or in closing arguments, that he killed Chico in the reasonable or
mistaken belief that he needed to do so in order to protect himself.”
(People v. Mejia, supra, F038504, at p. 13.)
SENATE BILL NOS. 1437 & 775
The instant appeal is from the denial of appellant’s petition for resentencing that
he filed pursuant to Senate Bill No. 1437 (2017–2018 Reg. Sess.) ( Senate Bill 1437),
that was effective on January 1, 2019, and amended “ ‘the felony murder rule and the
natural and probable consequences doctrine, as it relates to murder, to ensure that murder
7.
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.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 959, italics added
(Lewis).)
“Substantively, Senate Bill 1437 accomplishes this by amending section 188,
which defines malice, and section 189, which defines the degrees of murder, and as now
amended, addresses felony murder liability.” (People v. Martinez (2019) 31 Cal.App.5th
719, 723; People v. Gentile (2020) 10 Cal.5th 830, 842.)
“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 retroactively seek
relief.” (Lewis, supra, 11 Cal.5th at p. 959.)
“Pursuant to section 1170.95, an offender must file a petition in the sentencing
court averring that: ‘(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner
was convicted of first degree or second degree murder following a trial or accepted a plea
offer in lieu of a trial at which the petitioner could be convicted for first degree or second
degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second
degree murder because of changes to section 188 or 189 made effective January 1, 2019.’
[Citations.] Additionally, the petition shall state ‘[w]hether the petitioner requests the
appointment of counsel.’ [Citation.] If a petition fails to comply with subdivision (b)(1),
‘the court may deny the petition without prejudice to the filing of another petition.’ ”
(Lewis, supra, 11 Cal.5th at pp. 959–960.)
“Where the petition complies with [section 1170.95,] subdivision (b)’s three
requirements, then the court proceeds to subdivision (c) to assess whether the petitioner
has made ‘a prima facie showing’ for relief. [Citation.] [¶] If the trial court determines
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that a prima facie showing for relief has been made, the trial court issues an order to show
cause, and then must hold a hearing ‘to determine whether to vacate the murder
conviction and to recall the sentence and resentence the petitioner on any remaining
counts in the same manner as if the petitioner had not … previously been sentenced,
provided that the new sentence, if any, is not greater than the initial sentence.’ [Citation.]
‘The prosecutor and the petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.’ [Citation.] 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.’ ” (Lewis, supra, 11 Cal.5th at p. 960.)
Lewis
In Lewis, the court interpreted the provisions of section 1170.95 and held that
petitioners “are entitled to the appointment of counsel upon the filing of a facially
sufficient petition [citation] and that 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, supra, 11 Cal.5th at p. 957.) Lewis held the language of section
1170.95, subdivision (c) “is mandatory: ‘If the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner.’ ” (Lewis, at p. 963, italics added in
original.) The court’s failure to appoint counsel only constitutes state error subject to
review under People v. Watson (1956) 46 Cal.2d 818. (Lewis, at p. 973.)
Lewis also held that “at 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.’ ” (Lewis,
supra, 11 Cal.5th at p. 974.) When the court conducts the prima facie determination,
section 1170.95, subdivision (b)(2) only permits screening out “noncomplying petitions,
not petitions that lack substantive merit.” (Lewis, at p. 968.)
9.
Lewis further held that after appointing counsel, the trial court could rely on the
record of conviction to determine whether the prima facie showing is made “to
distinguish petitions with potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) The record of conviction includes a prior appellate opinion,
although it will be case specific. (Id. at p. 972.) The prima facie finding under
section 1170.95, subdivision (c) is limited, and the court must accept the petitioner’s
factual allegations as true and cannot reject the allegations on credibility grounds without
conducting an evidentiary hearing. (Lewis, at p. 971.) “ ‘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.” ’ ” (Ibid.) “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’ [Citation.] [T]he ‘prima facie bar
was intentionally and correctly set very low.’ ” (Lewis, at p. 972.)
Senate Bill No. 775
In October 2021, Senate Bill No. 775 was enacted and amended section 1170.95,
effective on January 1, 2022. (2020–2021 Reg. Sess.; Stats. 2021, ch. 551, § 1.) (Senate
Bill 775.) As a result of the amendments, section 1170.95 clarified that “persons
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,” may file a petition to have that conviction
vacated under certain circumstances. (§ 1170.95, subd. (a).)
The amendments also codified the holding in Lewis that a petitioner has the right
to appointment of counsel, if requested, prior to the court making the prima facie finding:
“Upon receiving a petition in which the information required by this subdivision is set
forth …, if the petitioner has requested counsel, the court shall appoint counsel to
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represent the petitioner.” (§ 1170.95, subd. (b)(3).) After appointment of counsel, the
parties shall have the opportunity to submit briefing, and “the court shall hold a hearing
to determine whether the petitioner has made a prima facie case for relief.” (Id. at
subd. (c).)
If the petitioner makes a prima facie showing that he or she is entitled to relief, the
court shall issue an order to show cause. If the court declines to issue an order to show
cause, it shall provide a statement fully setting forth its reasons for doing so. (§ 1170.95,
subd. (c).)
If the court issues the order to show cause and conducts a hearing, the prosecution
has the burden to prove beyond a reasonable doubt that the petitioner is guilty of murder
or attempted murder under the amended versions of sections 188 and 189. (§ 1170.95,
subd. (d)(3).) “The admission of evidence in the hearing shall be governed by the
Evidence Code, except that the court may consider evidence previously admitted at any
prior hearing or trial that is admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The court may also consider the
procedural history of the case recited in any prior appellate opinion. However, hearsay
evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of
Section 872 shall be excluded from the hearing as hearsay, unless the evidence is
admissible pursuant to another exception to the hearsay rule. The prosecutor and the
petitioner may also offer new or additional evidence to meet their respective burdens. A
finding that there is substantial evidence to support a conviction for murder … is
insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (Ibid., as amended by Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)
APPELLANT’S PETITION
On March 1, 2019, appellant filed a petition for resentencing pursuant to section
1170.95 and requested appointment of counsel.
11.
The petition was supported by appellant’s declaration, signed under penalty of
perjury, where he checked boxes on a preprinted form that stated he was entitled to
resentencing under section 1170.95 because a complaint or information was filed against
him that allowed the prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine; at trial, he was convicted of first
or second degree murder pursuant to the felony-murder rule or the natural and probable
consequences doctrine; and he could not now be convicted of first or second degree
murder under the amended versions of sections 188 and 189.
Appellant further declared he was not the actual killer; he did not, with the intent
to kill, aid, abet, counsel, command, or assist the actual killer; and he was not a major
participant in the underlying felony who acted with reckless indifference to human life.
The court appointed counsel to represent appellant and ordered the prosecutor to
file a response.
The People’s Opposition
On April 26, 2019, the People moved to dismiss the petition and argued Senate
Bill 1437 was unconstitutional.
In the alternative, the People further argued appellant’s petition should be denied
because he failed to make a prima facie case for eligibility. The People’s opposition
“paraphrased” the facts from this court’s prior opinion, and asserted appellant was
ineligible for relief because he was the actual killer based on his own trial testimony.
While appellant claimed they fought over the gun, and it accidentally discharged, he did
not testify that anyone else was present during the alleged struggle, and the jury
disbelieved his testimony since he was convicted of first degree premeditated murder
with the personal use enhancements.
Appellant’s Response
On July 11, 2019, appellant filed a response and argued the legislation was
constitutional.
12.
As to the prima facie finding, appellant relied on his trial testimony, as
summarized in this court’s opinion, and argued that he was not the actual killer, he did
not act with malice or intent to kill, and it was possible the victim was responsible for his
own death. Appellant further argued he did not act with reckless indifference to human
life, he never pulled the trigger, and the gun accidentally went off.
The Court’s Denial of the Petition
On August 2, 2019, Judge Rigby held a hearing on the petition. Appellant was
present with counsel. The court stated it had reviewed the pleadings and invited
argument. Both parties submitted the matter.
The court denied the petition and found the statutory amendments enacted by
Senate Bill 1437 were unconstitutional. The court then addressed the merits of the
petition’s allegations: “[A]nd then also with regard to the new facts in the case indicating
that under the facts of this case, [appellant] was the actual killer involved in the case and,
therefore, would not be qualified for the relief requested, even if the matter were
constitutional under [section] 1170.95. The People have laid that forth in some detail.”
(Italics added.)
The court stated that appellant’s pleadings took the position “that the killing of the
victim in this matter was a result of a firearm accidentally discharging” and asked the
prosecutor to address that claim. The prosecutor replied that appellant was “trying to
relitigate the murder trial” and the “whole self-defense issue. [T]he jury didn’t buy that
so to do that here in this motion I don’t think applies; it’s whether he was the shooter or
not, and I think the facts pretty much speak to the fact that he was.”
The court agreed there was “nothing else in the record that would indicate
otherwise,” and asked appellant’s counsel if he wanted to respond. Counsel declined.
The court again found Senate Bill 1437’s statutory enactments were
unconstitutional. It also denied the petition because appellant was “the actual killer
13.
involved in this matter, irrespective of the position of the defense that it was merely an
accident of the shooting, the Court is not persuaded.”
On September 16, 2019, appellant filed a notice of appeal from the court’s order
and requested and received a certificate of probable cause.
DISCUSSION
As noted above, appellant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that appellant was
advised he could file his own brief with this court. By letter on February 17, 2021, we
invited appellant to submit additional briefing.
Appellant’s Supplemental Brief
On May 24, 2021, appellant filed a supplemental brief with this court. He cited to
the trial court’s findings when it denied the petition, and argued the court violated his due
process rights because it improperly relied on “new” facts at the prima facie stage, and
that it could not make any factual findings unless it had issued an order to show cause
and conducted an evidentiary hearing.
Appellant correctly notes that a trial court cannot make factual or credibility
findings at the prima facie stage of evaluating a section 1170.95 petition. (Lewis, supra,
11 Cal.5th at p. 974.) When the court conducts the prima facie determination, section
1170.95, subdivision (b)(2) only permits screening out “noncomplying petitions, not
petitions that lack substantive merit.” (Lewis, at p. 968.) Once the court appoints
counsel, it may rely on the record of conviction, including the prior appellate opinion, to
determine whether the prima facie showing was made “to distinguish petitions with
potential merit from those that are clearly meritless.” (Id. at p. 971.)
At the August 2, 2019, hearing on the petition, the trial court stated that “with
regard to the new facts in the case indicating that under the facts of this case, [appellant]
was the actual killer involved in the case.” (Italics added.) The court’s statement is
quizzical because there are no “new facts” in the People’s opposition to appellant’s
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petition. Instead, the People’s opposition simply restated the facts as contained in this
court’s opinion that affirmed appellant’s convictions and sentence. Appellant similarly
relied on this court’s opinion in his reply and summarized his trial testimony about the
alleged accidental discharge, as set forth above.
While the trial court could not make factual findings at the prima facie stage, it
appears the court relied on the facts as summarized in the parties’ pleadings that were
from this court’s prior opinion. The opinion from appellant’s direct appeal is part of the
record of conviction that may be considered to determine whether the petitioner has made
a prima facie showing of resentencing eligibility. (Lewis, supra, 11 Cal.5th at p. 972.)
However, the role of the appellate opinion is circumscribed. The factual summary
contained in an appellate opinion is not considered admissible evidence regarding a
petitioner’s resentencing eligibility (§ 1170.95, subd. (d)(3)), and the court may not
engage in factfinding based on the appellate opinion at the prima facie stage (Lewis, at p.
972).
To the extent the court engaged in premature factfinding at the prima facie stage
(§ 1170.95, subd. (c)), we may affirm the denial of the petition if petitioner was not
prejudiced by the statutory errors in this case. (Lewis, supra, 11 Cal.5th at pp. 972–974.)
To demonstrate prejudice from the denial of a section 1170.95 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent the statutory error, his petition would not have been summarily denied
without an evidentiary hearing. (Lewis, at pp. 972–974; People v. Watson, supra, 46
Cal.2d at p. 836.) The prima facie determination is a question of law, and the court may
deny a petition at the prima facie stage if the petitioner is ineligible for resentencing as a
matter of law. (Lewis, at p. 966.)
Pursuant to section 1170.95, a petitioner is ineligible for resentencing if he or she
was the actual killer, acted with the intent to kill or malice aforethought, or was a major
participant in the underlying felony who acted with reckless indifference to human life.
15.
(§§ 188, subd. (a)(3), 189, subd. (e), 1170.95, subd. (a)(3); see People v. Gentile, supra,
10 Cal.5th at p. 842.) Appellant argues he was not the “actual killer” because “the
[victim’s] death was accidental in the course of defending myself and without lawful
intent.” Appellant’s arguments address causation, and causation does not involve
imputed malice that is now invalid after the enactment of Senate Bill 1437. (See, e.g.,
People v. Cervantes (2001) 26 Cal.4th 860, 871–872; People v. Roberts (1992) 2 Cal.4th
271, 321–322; People v. Fiu (2008) 165 Cal.App.4th 360, 371–372.) “The purpose of
section 1170.95 is to give defendants the benefit of amended sections 188 and 189 with
respect to issues not previously determined, not to provide a do-over on factual disputes
that have already been resolved.” (People v. Allison (2020) 55 Cal.App.5th 449, 461.)
Finally, appellant argues his trial counsel was prejudicially ineffective for failing
to introduce evidence at his trial about the victim’s alleged aggressive nature and prior
violent acts, and that evidence would have supported his request for instructions on self-
defense. Appellant cannot use the instant petition to reassert arguments that were raised
and rejected on direct appeal.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
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