Filed 8/2/22 P. v. Monroy CA4/3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058919
v. (Super. Ct. No. 02CF0424)
MARCO ANTONIO MONROY, OPI NION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Kimberly
Menninger, Judge. Reversed and remanded.
Tonja R. Torres, 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, Julie L. Garland and Robin Urbanski, Assistant Attorneys
General, Michael Pulos, Lynne G. McGinnis, Melissa Mandel and Nora S. Weyl, Deputy
Attorneys General, for Plaintiff and Respondent.
* * *
In 2005, defendant Marco Antonio Monroy was convicted of eight counts
involving several victims and sentenced to a total term of 25 years, 4 months, plus life
with the possibility of parole. One of the counts was attempted murder (Pen. Code, §§
1
664, 187). On direct appeal, we affirmed the judgment. (People v. Monroy (Dec. 14,
2006, G035580) [nonpub. opn.] (Monroy I).)
In January 2020, defendant filed a petition for resentencing in superior
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court pursuant to section 1172.6 (former § 1170.95). We affirmed the trial court’s denial
of the petition. (People v. Monroy (Feb. 11, 2021, G058919) [nonpub. opn.] (Monroy
II).)
Defendant sought review by the California Supreme Court, which was
granted and held pending action on other matters with related issues. This case was
subsequently remanded back to this court for further consideration. Based on the
Supreme Court’s decision in People v. Lewis (2021) 11 Cal.5th 952 (Lewis), and the
legislative changes to former section 1170.95, we reverse the trial court’s order and
remand the matter for further proceedings.
I
FACTS
“Because this appeal concerns only issue[s] of law, we need not review the
facts in any detail. A full recitation of the facts can be found in Monroy I. Suffice to say
that defendant was one of three men who kidnapped, assaulted, and shot one of the
victims, which led to the attempted murder charge relevant here.” (Monroy II, supra,
G058919.)
1
Subsequent statutory references are to the Penal Code unless otherwise indicated.
2
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no
change in text (Stats. 2022, ch. 58, § 10).
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II
DISCUSSION
As we discussed in Monroy I, the Legislature adopted Senate Bill No. 1437
(2017-2018 Reg. Sess.) (SB 1437), which amended sections 188 and 189. The goal of
SB 1437 was to change 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); see § 189, subd. (e).) SB 1437 also
created former section 1170.95, which gave those convicted of first or second degree
murder the right to petition for resentencing under certain circumstances.
Defendant filed a petition for resentencing under former section 1170.95
without an attorney on January 13, 2020. (Monroy II, supra, G058919.) On January 16,
the matter was transferred to Department C5 for review. On that same date, the trial
court summarily denied the petition, deciding defendant was ineligible for resentencing.
The court’s minute order stated, in relevant part: “The petition does not set forth a prima
face case for relief under the statute. A review of court records indicates defendant is not
eligible for relief under the statute because the defendant does not stand convicted of
murder or defendant’s murder conviction(s) is not based on felony-murder or on a natural
and probable consequences theory of vicarious liability for aiders and abettors.”
Defendant appealed, arguing both that he was entitled to counsel and that
the court erred by concluding that he was ineligible for relief under former section
1170.95, presumably because he was convicted of attempted murder. We affirmed the
trial court’s order. (Monroy II, supra, G058919.) Defendant’s petition for review to the
Supreme Court was granted and held, and after the Supreme Court decided several cases
with related issues, the case was transferred back to this court.
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With regard to the appointment of an attorney, in Lewis, the Supreme Court
held if a petitioner’s former section 1170.95 is facially sufficient, the trial court must
appoint counsel – it is not discretionary. (Lewis, supra, 11 Cal.5th at pp. 959-963.) At
that point, the court must receive further briefing, review the record of conviction, and
determine if the petitioner has made a prima facie showing under the statute. (Id. at pp.
959-960.) If so, the court then issues an order to show cause and conducts a hearing as to
whether a defendant should be resentenced.
Further, effective January 1, 2022, the Legislature amended former section
1170.95 to include convictions for attempted murder. (Stats. 2021, ch. 551, § 2.) The
amendment to former section 1170.95 is ameliorative in nature; therefore, it applies
retroactively to defendant’s appeal. (See In re Estrada (1965) 63 Cal.2d 740, 744-745;
see also People v. Frahs (2020) 9 Cal.5th 618, 627-628.)
Thus, defendant’s petition was denied both without an attorney and under
law that is no longer valid. To decide whether he was entitled counsel, we need only find
his petition was “facially sufficient” under former section 1170.95, subdivision (b)(1).
That provision requires “(A) A declaration by the petitioner that the petitioner is eligible
for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The
superior court case number and year of the petitioner’s conviction. [¶] (C) Whether the
petitioner requests the appointment of counsel.” (former § 1170.95, subd. (b)(1).)
Defendant’s petition met all three requirements, even if he was mistaken about the nature
of the first requirement at the time the petition was filed. Further, his petition specifically
requested the appointment of counsel.
Because the petition was facially sufficient, proceeding without counsel
was error. (People v. Mancilla (2021) 67 Cal.App.5th 854, 864.) Given the subsequent
change in the law, we find it was prejudicial because it is reasonably probable that with
the help of an attorney, his petition would not have been summarily denied.
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The Attorney General argues defendant is ineligible for relief from his
attempted murder conviction as a matter of law. Conversely, defendant argues he has
established a prima facie basis for relief. But it is not our role as an appellate court to
evaluate the petition in the first instance. On remand, we direct the court to appoint
counsel, receive briefing from the parties, and consider defendant’s former section
1170.95 petition to vacate his attempted murder conviction at the prima facie stage.
Request for Judicial Notice
The Attorney General requests we take judicial notice of the entire record
in Monroy I pursuant to Evidence Code sections 452, subdivision (d), and 459. Only
relevant evidence is subject to judicial notice. (Mangini v. R.J. Reynolds Tobacco Co.
(1994) 7 Cal.4th 1057, 1063.) We do not take judicial notice of the facts therein. (Id. at
pp. 1063-1064.) As discussed above, we need not consider the facts of the underlying
case. Those facts are for the trial court to consider in the first instance. Accordingly, the
request for judicial notice is denied.
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III
DISPOSITION
The order is reversed and the matter remanded for further proceedings in
accordance with this opinion.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
MARKS, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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