Filed 7/14/22 P. v. Aragon CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048398
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS081625A)
v.
DANIEL ARAGON,
Defendant and Appellant.
Daniel Aragon appeals following the denial of his petition for resentencing under
former Penal Code section 1170.951 (Stats. 2018, ch. 1015, § 4).2 The parties agree that
the trial court erred in making certain factual findings and should not have denied
Aragon’s petition at the prima facie stage. We concur and therefore reverse the trial
court’s order and remand with directions.
I. FACTS AND PROCEDURAL BACKGROUND
On April 27, 2009, the Monterey County District Attorney filed an amended
information against Aragon and three codefendants (Roman Gasca, Samuel Aragon, and
Mike Martinez). Aragon was charged with two counts of first degree murder (§ 187,
1
Unspecified statutory references are to the Penal Code.
2
Section 1170.95 has been amended and renumbered as section 1172.6. (Stats.
2022, ch. 58, § 10, eff. June 30, 2022; see also Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)
subd. (a); counts 1 & 2), two counts of attempted first degree murder (§§ 664, 187, subd.
(a); counts 3 & 4), one count of street terrorism (§ 186.22, subd. (a); count 5), one count
of gang conspiracy to commit a crime injurious to the public (§ 182.5; count 6), and one
count of shooting at an inhabited dwelling (§ 246; count 7). In addition, the information
charged Aragon with gang allegations (§ 186.22, subd. (b)(1)) in connection with counts
1, 2, 3, 4, and 7.
Shortly before Aragon’s trial was scheduled to begin, on July 22, 2010, Aragon
elected (over the objection of his counsel and without a plea agreement) to plead guilty to
all the counts and allegations.3 On a written waiver of rights form, Aragon initialed an
acknowledgement that the maximum possible sentence he could receive was 120 years to
life, plus three years. The waiver of rights form did not contain any statement of facts
about the crimes to which Aragon was pleading guilty or the theory of liability for his
convictions for first degree murder.
The probation report prepared for Aragon’s sentencing contains a section
describing the “circumstances of the offense,” (bolding & capitalization omitted) that
states it was derived from police reports and information from the district attorney’s
office. That section describes the killing of two men and the attempted killing of two
others on May 25, 2008, by a man yelling gang slogans. The report generally describes
Aragon’s role in the offenses as the driver of the car in which the actual shooter (or
shooters) had been riding immediately prior to the crime. Unidentified individuals who
had participated in the crime told an investigator from the district attorney’s office that
Aragon had helped plan the murders in retaliation for a gang-related shooting but was not
the actual shooter in the instant offenses. The report states that Aragon “has expressed
extreme remorse for his part in these crimes.”
3
There is no reporter’s transcript for this hearing in the record on appeal.
2
On February 22, 2011, the trial court sentenced Aragon. The prosecutor stated at
the sentencing hearing, “because Mr. Aragon was not the shooter, he had no record, he
pled to everything, he took full responsibility for what he did, he had no deals or
anything, I’d ask the Court to sentence him on Count 1 to the statutory sentence of 25
years to life and run all other sentences concurrent except for Count 6, the conspiracy,
which would be [section] 654.” The trial court denied probation and sentenced Aragon
on counts 1 and 2 to a term of imprisonment of 25 years to life, on counts 3 and 4 to a
term of 15 years to life, on count 5 to two years, on count 7 to 15 years to life, and on
count 6 to 25 years to life, stayed. The court ordered all terms to run concurrently. The
court also ordered Aragon to pay fines, fees, and restitution.
On February 28, 2019, Aragon petitioned for resentencing under former section
1170.95 by submitting a preprinted form (petition). By checking various boxes, Aragon
alleged he had been charged with an offense that allowed the prosecution to proceed
under a felony-murder theory or murder under the natural and probable consequences
doctrine, that he pled guilty to first degree murder in lieu of going to trial because he
believed he could have been convicted of murder pursuant to the felony-murder rule or
the natural and probable consequences doctrine, and that he could no longer be convicted
of first or second degree murder because of changes made to sections 188 and 189.
Aragon requested appointment of counsel and checked boxes stating he “was not the
actual killer,” “did not, with the intent to kill, aid, abet, . . . or assist the actual killer in the
commission of murder in the first degree,” “was not a major participant in the felony,”
“did not act with reckless indifference to human life during the course of the crime,” and
stating that the victim was not a peace officer.
On April 10, 2019, the trial court appointed counsel for Aragon on his petition.
The People opposed Aragon’s petition. In their written opposition, the People
submitted a statement of facts describing Aragon’s role in the offenses. The People’s
opposition states, “The factual basis in this response is taken from the Probation Report,
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attached hereto. In the event that the Court wishes to examine more detailed factual
evidence in this case, the People can provide the preliminary hearing transcript upon
request.”
The People argued that Aragon was ineligible for relief under section 1170.95
because Aragon was not prosecuted under a theory of felony murder or of natural and
probable consequences but as an aider and abettor to first degree murder. The People
asserted Aragon “could absolutely be prosecuted for murder today based upon the same
aiding and abetting theory that applied when he was original charged and prosecuted. He
assisted [the actual shooters] in these murders, and he did so with the intent to kill.
[Aragon] acted with express malice in this case.”
Aragon’s attorney did not file any papers in support of Aragon’s petition.
On June 21, 2019, the trial court denied Aragon’s petition. The trial court’s ruling
on the petition (delivered orally) states, “So having reviewed the petition and the DA’s
response I find that the Petitioner has not established a prima facie showing. He was not
prosecuted under . . . a felony murder theory or the natural and probable consequences
doctrine. The evidence was clear that he was prosecuted as a single aider and abettor. [¶]
So the petition is denied.”
On April 16, 2021, this court granted Aragon relief from default for failing to file
a timely notice of appeal and gave him leave to file an appeal within 30 days. On April
21, 2021, Aragon filed a notice of appeal, and this court subsequently appointed appellate
counsel for him.
Aragon’s appointed appellate counsel filed a Serrano brief (In re Serrano (1995)
10 Cal.4th 447 (Serrano)) in this court that raised no issues. Aragon filed a supplemental
brief in propria persona. In his brief, Aragon maintained that he “was the driver and [it]
is very clear [he] did not know that his codefendants were going to kill someone when
they asked him for a ride.” Aragon argued that the “the order denying resentencing must
be reversed because premature fact finding contravened the terms of section 1170.95.”
4
After reviewing the briefs and record, we requested supplemental briefing on
whether the trial court erred in concluding that Aragon had not made a prima facie
showing of entitlement to relief and, if so, whether any error was harmless. Aragon’s
counsel and the Attorney General filed responsive briefs.
II. DISCUSSION
In his supplemental brief, Aragon asserts that the trial court erred in denying his
petition at the prima facie stage because nothing in the record established as a matter of
law that he was not convicted of first degree murder on a theory of natural and probable
consequences under the law extant at the time of conviction. Aragon requests that this
court reverse the judgment and remand the matter to the trial court with directions to
issue an order to show cause.
The Attorney General concedes that, as Aragon’s petition stated a prima facie
claim of eligibility and nothing in the record demonstrates Aragon’s ineligibility as a
matter of law, the trial court erred in denying the petition at the prima facie stage. In
addition, the Attorney General asserts the error was not harmless. The Attorney General
maintains that the appropriate remedy is for this court to remand the matter with orders
for the trial court to issue an order to show cause and conduct an evidentiary hearing.
We agree with the parties that Aragon’s petition presented a prima facie showing
of relief, and nothing in the record established as a matter of law that Aragon is ineligible
for relief under former section 1170.95 (current section 1172.6). (People v. Lewis (2021)
11 Cal.5th 952, 970 (Lewis).)
As the California Supreme Court has made clear (in an opinion issued after the
trial court’s order here), “the prima facie inquiry under [section 1170.95,] subdivision (c)
is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “the
court takes petitioner’s factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his or her factual allegations
were proved. If so, the court must issue an order to show cause.” ’ [(People v. Drayton
5
(2020) 47 Cal.App.5th 965,] 978, quoting Cal. Rules of Court, rule 4.551(c)(1)).) ‘[A]
court should not reject the petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ (Ibid., fn. omitted, citing [Serrano, supra, 10
Cal.4th at p. 456].) ‘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.” ’ (Drayton, at p. 979,
quoting Serrano, at p. 456.)” (Lewis, supra, 11 Cal.5th at p. 971.)
Nothing in the record establishes as a matter of law that Aragon was ineligible for
relief. The trial court’s finding that Aragon was prosecuted as a single aider and abettor
rests on the type of factfinding in which the trial court may not engage at the prima facie
stage.
Therefore, this matter must be remanded with instructions to issue an order to
show cause and hold an evidentiary hearing. We note that section 1170.95 has been
amended and renumbered. (Stats. 2022, ch. 58, § 10.) It now appears at section 1172.6.
The provision describing the evidentiary hearing appears at section 1172.6, subdivision
(d)(3). It provides:
“At the hearing to determine whether the petitioner is entitled to relief, the burden
of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under California law as amended by
the changes to [s]ection 188 or 189 made effective January 1, 2019. 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 [s]ection 872 shall be excluded from
the hearing as hearsay, unless the evidence is admissible pursuant to another exception to
6
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, attempted murder, or manslaughter is insufficient to
prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the
prosecution fails to sustain its burden of proof, the prior conviction, and any allegations
and enhancements attached to the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” (§ 1172.6, subd. (d)(3).)
We decide Aragon in his petition made a prima facie showing that he is entitled to
relief, and the trial court erred in not issuing an order to show cause. We therefore
reverse the trial court’s order denying Aragon’s petition and remand with directions to
issue an order to show cause under section 1172.6, subdivision (c), and hold a hearing
pursuant to section 1172.6, subdivision (d). Upon remand, the trial court should apply
current law in its consideration of Aragon’s petition. We express no opinion about
Aragon’s ultimate entitlement to relief following the hearing. (§ 1172.6, subd. (d)(3).)
III. DISPOSITION
The trial court’s June 21, 2019 order denying Aragon’s Penal Code section
1170.95 petition for resentencing is reversed. The matter is remanded to the trial court
with directions to issue an order to show cause (Pen. Code, § 1172.6, subd. (c)) and hold
a hearing to determine whether to vacate Aragon’s murder conviction and to recall his
sentence and resentence him (Pen. Code, § 1172.6, subd. (d)).
7
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Bamattre-Manoukian, Acting P.J.
____________________________________
Wilson, J.
H048398
People v. Aragon