Filed 5/13/22 P. v. Vasquez CA2/5
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B300872
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA041420)
v.
STEVEN A. VASQUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Teri Schwartz, Judge. Reversed and remanded.
Janet Uson, 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, Daniel C. Chang,
Nancy Lii Ladner, Idan Ivri, and Allison H. Chung, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Steven A. Vasquez appealed from
the denial of his petition for resentencing pursuant to Penal Code
section 1170.951 and Senate Bill No. 1437 (Senate Bill 1437). We
affirmed the trial court’s order summarily denying Vasquez’s
petition without appointment of counsel on the basis that section
1170.95 did not provide relief for Vasquez because he was
convicted of attempted murder.
The Supreme Court granted Vasquez’s petition for review,
and on February 16, 2022, it transferred the matter back to this
court with directions to vacate our decision and reconsider the
cause in light of Senate Bill No. 775 (Stats. 2021, ch. 551) and
People v. Lewis (2021) 11 Cal.5th 952 (Lewis).2 (Cal. Rules of
Court, rule 8.528(d).)
We ordered our prior opinion vacated on March 1, 2022,
and now issue this opinion.
DISCUSSION
Legal Principles
Section 1170.95, which was added to the Penal Code
through the enactment of Senate Bill 1437, created a petitioning
process by which a defendant convicted of murder under a felony
murder or natural and probable consequences theory of liability
1All further statutory references are to the Penal Code
unless otherwise indicated.
2 The Supreme Court denied Vasquez’s request to expand
the issues on review as moot.
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could petition to have his or her conviction vacated and be
resentenced. (§ 1170.95, subd. (a).)
As relevant here, Senate Bill 775 amended section 1170.95
to clarify that “persons who were convicted of attempted murder .
. . under . . . the natural and probable consequences doctrine are
permitted the same relief as those persons convicted of murder
under the same theor[y].” (Stats. 2021, ch. 551, § 1, subd. (a).)
Pursuant to section 1170.95, as amended by Senate Bill
775, a petitioner must submit a declaration stating that he or she
meets the requirements of the statute as set forth in subdivision
(a), including that “(1) [a] complaint, information, or indictment
was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder, 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, or attempted murder under the
natural and probable consequences doctrine[,] (2) [t]he petitioner
was convicted of murder, attempted murder, or manslaughter
following a trial or accepted a plea offer in lieu of a trial at which
the petitioner could have been convicted of murder or attempted
murder[, and] (3) [t]he petitioner could not presently be convicted
of murder or attempted murder because of changes to Section 188
or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
If the petition is facially sufficient and the petitioner has
requested that counsel be appointed, the trial court appoints
counsel. (§ 1170.95, subd. (b)(3).) “Within 60 days after service of
a petition that meets the requirements set forth in subdivision
(b), the prosecutor shall file and serve a response. The petitioner
may file and serve a reply within 30 days after the prosecutor’s
response is served. . . . After the parties have had an opportunity
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to submit briefings, the court shall hold a hearing to determine
whether the petitioner has made a prima facie case for relief. If
the petitioner makes a prima facie showing that the petitioner is
entitled to relief, the court shall issue an order to show cause. If
the court declines to make an order to show cause, it shall
provide a statement fully setting forth its reasons for doing so.”
(§ 1170.95, subd. (c).)
Our Supreme Court issued Lewis, supra, 11 Cal.5th 952,
prior to the enactment of Senate Bill 775. Among other things,
Lewis held that a petitioner is entitled to counsel under section
1170.95 upon filing a facially sufficient petition. (Id. at p. 957.)
“[O]nly 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.’ (§ 1170.95, subd.
(c).)” (Ibid.) The right to counsel at this stage in proceedings is
statutory only; the court’s failure to appoint counsel may be
deemed harmless under the standard set forth in People v.
Watson (1956) 46 Cal.2d 818, 299 P.2d 243 (Watson). (Lewis,
supra, at pp. 957–958.) Senate Bill 775 codifies Lewis’s holdings
regarding a petitioner’s right to counsel. (See Stats. 2021, ch.
551, § 1, subd. (b).)
Analysis
In light of the amendments to section 1170.95, the parties
agree that Vasquez is no longer ineligible for relief based on the
fact that he was convicted of attempted murder rather than
murder. They disagree, however, as to whether the jury
instructions given at trial in 2000 preclude Vasquez from
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demonstrating that he “could not presently be convicted of . . .
attempted murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (a)(3).) The People
requested that we take judicial notice of the jury instructions and
argued that the error was harmless because (1) there were no
instructions given regarding the natural and probable
consequences doctrine and (2) in light of the jury’s verdicts and
the instructions given, the jury necessarily found that Vasquez
harbored the intent to kill the victim. Vasquez responded that
ambiguities in the instructions may have caused the jury to
convict him on a now-invalid theory of attempted murder, such
that remand for appointment of counsel, briefing, and a hearing
are required.
We agree with the parties that the trial court erred by
failing to appoint counsel. We cannot say that the trial court’s
error was harmless under Lewis. The only evidence relevant to
Vasquez’s eligibility contained in the trial court record is the
abstract of judgment and the amended abstract of judgment.
These documents were sufficient to support the trial court’s
finding that Vasquez was convicted of attempted murder, and to
support the trial court’s ruling of ineligibility at the time the
ruling was made. Standing alone, however, they do not suffice to
preclude Vasquez’s eligibility at this juncture.
As the People concede, it does not appear, either from the
contents of the record or the trial court’s written order, that the
trial court denying Vasquez’s petition under section 1170.95
reviewed the instructions that had been given to the jury at
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Vasquez’s trial.3 Nor did the trial court have the opportunity to
review any other evidence that appointed counsel may have
offered to make a prima facie showing of Vasquez’s eligibility.4
The issue of whether ambiguities in the specific instructions
given here could have led the jury to convict Vasquez of
attempted murder under an invalid theory of liability may be
informed by other portions of the record of conviction that are not
before this court, and were not before the trial court.
Accordingly, we reverse the order denying Vasquez’s section
1170.95 petition, and remand the cause for the trial court to
appoint counsel and conduct further proceedings consistent with
this opinion.
3We note that the judge who ruled on Vasquez’s petition
under section 1170.95 was not the judge who presided at
Vasquez’s jury trial approximately two decades earlier.
4 Citing to Lewis, supra, 11 Cal.5th 952, for the proposition
that prior appellate opinions are a part of the record of conviction
that should be considered by the trial court, the People argue
that in its prior opinion another panel of this court held that,
based on the facts presented, Vasquez necessarily harbored the
intent to kill and acted with premeditation and deliberation. We
will not address the argument here. We did not grant the
People’s request to take judicial notice of the prior appellate
record, and nothing in the superior court record indicates that the
trial court reviewed the prior appellate opinion or relied upon it
in denying Vasquez’s petition. We observe that the amendments
to section 1170.95, subdivision (d)(3), bring into question whether
the trial court may rely upon portions of the appellate record
other than the “procedural history” when evaluating eligibility
under section 1170.95. (Ibid. [“The court may also consider the
procedural history of the case recited in any prior appellate
opinion”].)
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DISPOSITION
The trial court’s order denying Vasquez’s petition for
resentencing under section 1170.95 is reversed, and the cause is
remanded for further proceedings.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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