Filed 2/16/23 P. v. Santana CA2/6
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B299353
(Super. Ct. No. TA063973)
Plaintiff and Appellant, (Los Angeles County)
v.
OPINION FOLLOWING
ANDRES SANTANA, TRANSFER FROM
SUPREME COURT
Defendant and Respondent.
Andres Santana was convicted in 2002 of two counts of
murder (Pen. Code, § 187, subd. (a))1 and two counts of robbery
(§ 211). The jury found true the special circumstance allegations
that Santana committed the murders while engaged in a robbery
(§ 190.2, subds. (a)(17)(A), (d)), for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)), which resulted in multiple murders
(§ 190.2, subd. (a)(3)). The trial court sentenced Santana to life
without the possibility of parole plus 10 years for the gang
1 All statutory references are to the Penal Code.
enhancement. We affirmed his convictions on appeal. (People v.
Santana (Apr. 11, 2005, B167415) [nonpub. opn.] (Santana I).)
In 2019, Santana filed a petition to vacate his murder
convictions and to be resentenced pursuant to section 1170.95,
which was added to the Penal Code by Senate Bill No. 1437 (S.B.
No. 1437). (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019.)2 The
trial court denied the petition without appointing counsel. It
concluded the petition lacked merit because (1) the jury
determined Santana was a major participant in the underlying
crime by finding the felony-murder special circumstance true and
(2) the jury was not instructed on the natural and probable
consequences doctrine.
In an unpublished opinion, we affirmed the trial court’s
order denying Santana’s resentencing petition, concluding that
the jury’s true special circumstance finding precluded relief
under section 1172.6 as a matter of law. (People v. Santana
(Mar. 3, 2022, B299353) [nonpub. opn.] (Santana II).)
The California Supreme Court granted review and
transferred the matter back to us with directions to vacate our
opinion and reconsider the cause in light of People v. Strong
(2022) 13 Cal.5th 698 (Strong). By separate order, we vacated
our opinion.
In post-transfer supplemental briefing, the parties agree
that under Strong the jury’s true finding on the robbery-murder
special circumstance does not render Santana ineligible for relief
as a matter of law. Upon reconsideration, we reverse and
remand for further proceedings under section 1172.6.
2 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text (Stats. 2022,
ch. 58, § 10).
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FACTS AND PROCEDURAL HISTORY3
In the late evening, victims Reynaldo Aguilar and Tony
Esquer were sitting in a parked SUV with Raul Mata. The three
men had smoked crack cocaine earlier that day and were
drinking beer in the SUV.
Mata saw Santana and a man named Eric walk by. Mata
recognized Santana as a man he had seen in the neighborhood
from time to time over the past few years. Mata knew that
Santana and Eric were members of the Lynnwood Dukes street
gang.
Mata left the SUV to buy more beer while Aguilar and
Esquer remained in the vehicle. While Mata was on the street,
Santana and Eric approached him and demanded money. Eric
took $10 out of Mata’s pocket.
Santana and Eric began walking towards the SUV. Mata
followed. As Santana and Eric reached the SUV, Mata saw a
third person hiding behind the vehicle. Either Santana or Eric
opened the door. They demanded money and started beating
Aguilar. Mata hid for a few minutes and then fled and called
911. It was later determined that Aguilar and Esquer suffered
multiple bruises and more serious wounds to the head. Both died
from skull fractures caused by a blunt instrument.
A few minutes after Mata’s 911 call, police officers arrived
at the scene and discovered the bodies near the SUV. Mata
approached the police and immediately identified the assailants
as Santana and Eric. An officer testified that Mata described
Santana as five feet ten inches tall with a bald head. But, at
3We take the facts from the unpublished opinion we issued
in 2005 affirming Santana’s convictions. (Santana I, supra,
B167415.)
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trial, Mata testified that Santana was about five feet five or six
inches tall. Mata admitted he had consumed about 18 beers
during the day, including four within two or three hours prior to
the murders.
The morning after the murders, Mata was asked to look at
a photographic “six-pack” provided by the police. He stated he
did not want to get involved and at first failed to identify Santana
or anyone else. After a break, Mata identified Santana as one of
the assailants. Mata also identified Santana in a lineup in June
2002, and at trial in November 2002.
“In 2019, Santana filed a petition to vacate his murder
convictions and obtain resentencing pursuant to section 1170.95,
which was added to the Penal Code by [S.B.] No. 1437. (Stats.
2018, ch. 1015, § 4.) The trial court denied the petition without
appointing counsel. It determined the petition lacked merit
because (1) the jury found Santana ‘was a major participant in
the underlying crime’ by finding the felony-murder special
circumstance true and (2) the jury was not instructed on the
natural and probable consequences doctrine.” (Santana II, supra,
B299353).)
Santana appealed the order denying the petition. We
affirmed, concluding “the true finding on the felony-murder
special circumstance allegation rendered him ineligible for
section 1170.95 relief as a matter of law.” (Santana II, supra,
B299353).)
DISCUSSION
S.B. No. 1437 amended 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
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acted with reckless indifference to human life.” (Stats. 2018, ch.
1015, § 1, subd. (f).) It achieves these goals by amending section
188 to require that a principal act with express or implied malice
(§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by
amending section 189 to state that a person can be liable for
felony murder only if: (1) the “person was the actual killer”; (2)
the person, with an intent to kill, was an aider or abettor “in the
commission of murder in the first degree”; or (3) the “person was
a major participant in the underlying felony and acted with
reckless indifference to human life.” (§ 189, subd. (e)(1)-(3), as
amended by Stats. 2018, ch. 1015, § 3.)
S.B. No. 1437 also added what is now section 1172.6, which
permits a person convicted of felony murder or murder under a
natural and probable consequences theory to petition the
sentencing court to vacate the murder conviction and resentence
the person on any remaining counts if, among other things, the
petitioner could not be convicted of first or second degree murder
due to the change in the law. (§ 1172.6, subd. (a).) Upon
submission of a facially sufficient petition that requests counsel,
the court shall appoint counsel and provide the parties an
opportunity to submit briefs. (§ 1172.6, subds. (b)(3) & (c).)
Following briefing, the court must hold a hearing to determine
whether the petitioner has made a prima facie case for relief.
(§ 1172.6, subd. (c).) If a sufficient prima facie showing is made,
the court must issue an order to show cause. (§ 1172.6, subds. (c),
(d).)
The prima facie inquiry under section 1172.6, subdivision
(c) is “limited.” (People v. Lewis (2021) 11 Cal.5th 952, 971
(Lewis).) The court “‘“takes [the] 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
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allegations were proved.”’” (Ibid.) Although the court may rely
on the record of conviction (including a prior appellate court
opinion) in determining whether the petitioner has made a prima
facie showing, the court “should not engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion.’”
(Id. at p. 972.) The “‘prima facie bar was intentionally and
correctly set very low.’” (Ibid.)
Years after Santana’s convictions, our Supreme Court
issued People v. Banks (2015) 61 Cal.4th 788 (Banks) and People
v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the
analysis for who qualifies as a major participant acting with
reckless indifference to human life. (People v. Torres (2020) 46
Cal.App.5th 1168, 1179, abrogated on other grounds in Lewis,
supra, 11 Cal.5th at p. 963.)
After we rejected Santana’s arguments in our previous
opinion, the Supreme Court decided Strong, which held:
“Findings issued by a jury before Banks and Clark do not
preclude a defendant from making out a prima facie case for
relief under Senate Bill [No.] 1437. This is true even if the trial
evidence would have been sufficient to support the findings under
Banks and Clark.” (Strong, supra, 13 Cal.5th at p. 710.)
Here, the trial court decided that the jury’s pre-
Banks/Clark findings precluded Santana from making a prima
facie showing as a matter of law. This decision does not survive
Strong’s holding that such findings do not preclude a prima facie
showing. (Strong, supra, 13 Cal.5th at p. 710.).
Santana’s resentencing petition is facially sufficient, as it
alleges the essential facts necessary for relief under section
1172.6. (§ 1172.6, subds. (a)-(c); Lewis, supra, 11 Cal.5th at pp.
970-972.) Since nothing in the record demonstrates that Santana
is ineligible for relief as a matter of law, we reverse and remand
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for further proceedings. (§ 1172.6, subd. (d).) We express no
opinion as to the ultimate resolution of the petition.
DISPOSITION
The trial court’s order denying Santana’s section 1172.6
petition for resentencing is reversed. On remand, the trial court
shall issue an order to show cause and, to the extent necessary,
shall hold an evidentiary hearing on the petition.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Michael J. Shultz, Judge
Superior Court County of Los Angeles
______________________________
Larry Pizarro, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Senior Assistant Attorney
General, Idan Ivri and Yun K. Lee, Deputy Attorneys General,
for Plaintiff and Respondent.
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