Filed 6/21/22 P. v. Mota-Avendano CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A162360
v.
JOSE MOTA–AVENDANO, (Contra Costa County
Super. Ct. No. 5-080903-8)
Defendant and Appellant.
Defendant Jose Mota–Avendano (Mota1) was convicted of three first
degree murders, conspiracy to commit murder, and assault with a deadly
weapon. This court affirmed the judgment in 2013, and the California
Supreme Court affirmed our judgment in 2015. (People v. Elizalde (Dec. 19,
2013, A132071) as modified on denial of rehg., review granted and opinion
superseded and affd. by People v. Elizalde (2015) 61 Cal.4th 523, 527.)
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.)
“eliminated natural and probable consequences liability for murder” “ ‘to
ensure that murder liability is not imposed on a person who is not the actual
killer [and] did not act with the intent to kill.’ ” (People v. Lewis (2021) 11
1 The parties refer to defendant as Mota, and we will do the same.
1
Cal.5th 952, 957, 959 (Lewis).)2 As part of the new law, the Legislature
added Penal Code3 section 1170.95, “which provides a procedure for convicted
murderers who could not be convicted under the law as amended to
retroactively seek relief.” (Id. at p. 959.)
Mota, who was not the actual shooter in any of the three murders he
was convicted of, filed a petition for resentencing under section 1170.95. The
district attorney opposed the petition on the ground that there was “no
rational argument” that the jury relied on a natural and probable
consequences theory of liability. The trial court denied the petition at the
prima facie stage, finding he was ineligible for relief as a matter of law.
Mota appeals the summary denial of his petition. The Attorney
General concedes the trial court erroneously denied the petition without
issuing an order to show cause.
We will reverse and remand to the trial court so that it can issue an
order to show cause and hold a hearing in accordance with section 1170.95,
subdivisions (c) and (d).
FACTUAL AND PROCEDURAL BACKGROUND
Underlying Murder Convictions
Mota was charged with two codefendants (Javier Gomez and Gamaliel
Elizalde) with the murder of Rico McIntosh (§ 187; count 1), conspiracy to
2 In Mota’s trial, the jury was instructed on the doctrine of natural and
probable consequences in relation to aiding and abetting and conspiracy
where the target crime Mota was alleged to have aided and abetted and
conspired to commit was assault with a deadly weapon. We note that Senate
Bill No. 1437 also limited the scope of the felony murder rule (Lewis, supra,
11 Cal.5th at p. 957), but that rule is not at issue here because Mota was not
prosecuted under a felony murder theory, and the jury was not instructed on
it.
3 Further undesignated statutory references are to the Penal Code.
2
commit murder and assault with a deadly weapon (§§ 182, subd. (a)(1), 187,
245, subd. (a)(1); count 2), active participation in a criminal street gang
(§ 182.5; count 3), the murder of Antonio Centron (§ 187; count 4), and the
murder of Luis Perez (ibid.; count 5).
As recounted by our Supreme Court, “Briefly, the facts supporting
[Mota’s] convictions are as follows: [¶] Varrio Frontero Loco (VFL) is a
subgroup of the Sureño criminal street gang and is active in Contra Costa
County. Three witnesses who knew Mota testified he belonged to VFL . . . .
“In 2007, Gamaliel Elizalde rose to power in VFL when another leader
fled after committing a murder. Thereafter, the VFL organization began to
deteriorate. To reestablish its position, Elizalde directed several members to
‘put in more work’ by assaulting Norteños to let them ‘know we around, we
ain’t gone.’ Mota and four others were put in charge of the gang’s efforts. . . .
Mota told [VLF associate, Oscar] Menendez that he had to ‘earn’ a VFL tattoo
by doing something ‘big’ like killing a Norteño.
“On December 22, 2007, VFL members Jorge Sanchez, Francisco
Romero, and Hector Molina drove to San Pablo planning to beat or shoot
Norteños. They saw three men walking down the street, two wearing the
Norteño color, red. Molina hid behind a fence. When the three men rounded
the corner, Molina identified himself as VFL and shot at them repeatedly.
Antonio Centron was killed; the other two men were wounded but survived.
“On February 16, 2008, Mota and other VFL members drove around
gang territory in two cars. The car carrying Mota stopped near Luis Perez,
who was standing on the street dressed in a red jacket. After the men in the
car argued with Perez, Jorge Camacho fatally shot him.
“On April 26, 2008, Mota was in Norteño territory with Menendez and
Javier Gomez. Mota pulled the car he drove alongside Rico McIntosh, who
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was wearing a red bandana. Gomez asked McIntosh if he was a ‘buster.’
McIntosh replied, ‘what the fuck is a buster?’ and reached into his jacket.
Menendez thought he heard Mota say, ‘pull it out.’ Gomez drew a gun and
shot at McIntosh several times; Mota and Gomez laughed. McIntosh died the
next day.” (People v. Elizalde, supra, 61 Cal.4th at p. 528.)
The jury found Mota guilty of three counts of first degree murder,
conspiracy to commit murder and assault with a deadly weapon, and gang
participation.4 For the murder of McIntosh (count 1), the jury found true an
enhancement of intentionally discharging a firearm causing great bodily
injury or death.
Petition For Resentencing
In 2019, Mota, representing himself, filed a petition for resentencing
under section 1170.95. The trial court appointed an attorney to represent
him.
In March 2020, the prosecution filed an opposition to the section
1170.95 petition, arguing Mota was not entitled to relief “because he was
found guilty of harboring a premediated and deliberate intent to kill” in each
murder count. Painting in broad strokes and noting that the jury convicted
Mota of conspiracy to commit murder and three counts of first degree murder,
the prosecutor asserted, “therefore no theory of . . . natural and probable
consequences applied to him or was used to convict him of any of the three
counts of murder.”
In October 2020, Mota filed a brief in support of the petition for
resentencing. He pointed out that the jury was instructed that members of a
In connection with the guilty verdict on the conspiracy count, the jury
4
made separate findings that Mota was guilty of conspiracy to commit murder
and that he was guilty of conspiracy to commit assault with a deadly weapon.
4
conspiracy are liable “for the natural and probable consequences of any crime
or act of a co-conspirator to further the object of the conspiracy” and
similarly, that aiders and abettors are “guilty of any other crime committed
by a principal which is a natural and probable consequence of the crimes
originally aided and abetted.” He argued that the jury instructions and
closing argument allowed Mota’s conviction for killing Centron (predicated on
his involvement as a coconspirator) to be based on the natural and probable
consequence doctrine. And he argued that the jury instructions permitted
Mota to be convicted of the murders of McIntosh and Perez not only on a
direct aiding and abetting theory, but also on the natural and probable
consequences doctrine under the theory Mota aided and abetted the target
crime of assault with a deadly weapon and murder was a natural and
probable consequence of the commission of that crime.
In March 2021, the trial court summarily denied defendant’s petition
for resentencing.
DISCUSSION
As we have mentioned, section 1170.95 “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
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second degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.’ (§ 1170.95, subds. (a)(1)–(3); see also § 1170.95
subd. (b)(1)(A).) Additionally, the petition shall state ‘[w]hether the
petitioner requests the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).)
If a petition fails to comply with subdivision (b)(1), ‘the court may deny the
petition without prejudice to the filing of another petition . . . .’ (§ 1170.95,
subd. (b)(2).)” (Lewis, supra, 11 Cal.5th at pp. 959–960.)
When a defendant files a petition in compliance with section 1170.95,
the trial court “assess[es] whether the petitioner has made ‘a prima facie
showing’ for relief. (§ 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at p.
960.) A petitioner fails to meet the prima facie showing if the record of
conviction shows the petitioner is ineligible for relief as a matter of law. (See
id. at pp. 970–971; People v. Offley (2020) 48 Cal.App.5th 588, 598 [trial court
erred in denying a section 1170.95 petition at the prima facie stage where the
record “d[id] not establish as a matter of law” that the petitioner was
ineligible for relief].)
When a “trial court determines 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.’ (§ 1170.95, subd. (d)(1).) ‘The 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
6
doubt, that the petitioner is ineligible for resentencing.’ (§ 1170.95, subd.
(d)(3).)” (Lewis, supra, 11 Cal.5th at p. 960.)
Here, the Attorney General has stepped away from the prosecutor’s
position in the trial court and concedes that the trial court erred in
summarily denying Mota’s petition without issuing an order to show cause
and holding a hearing to determine whether the prosecution could prove
beyond a reasonable doubt that defendant is guilty of the three murders.
Although Mota was convicted of conspiracy to commit murder, the Attorney
General explains that it is at least “possible that the jury found that the
conspiracy to commit murder only applied to one or two of the victims.
Therefore, the jury could have found that [Mota] was guilty of killing the
other victim or victims because those murders were the natural and probable
consequences . . . of the conspiracy to commit assault with a deadly weapon.”5
We accept the Attorney General’s concession. Since we cannot exclude
the possibility that one or more of the murder convictions was based on the
now-forbidden theory of natural and probable consequences, Mota has made
a prima facie showing for relief. Therefore, the trial court should have issued
an order to show cause and proceeded with a hearing as provided in section
1170.95 subdivisions (c) and (d). As we have just described, “the burden of
proof [at the hearing] shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.”
(§ 1170.95, subd. (d)(3).)
5 The Attorney General states that “[t]he instructions allowed the jury
to find appellant guilty of first degree murder if there was a conspiracy to
commit assault with a deadly weapon and first degree murder was the
natural and probable consequence.”
7
In light of our holding, we do not need to address Mota’s other
arguments.
DISPOSITION
The order denying the petition for resentencing is reversed, and the
matter is remanded for the trial court to issue an order to show cause and
hold a hearing in accordance with section 1170.95 subdivisions (c) and (d).
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Mayfield, J.*
A162360, People v. Mota-Avendano
*Judge of the Mendocino Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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