Filed 3/8/23 P. v. Gamez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079200
Plaintiff and Respondent,
v. (Super. Ct. No. FBA1100613)
ROLANDO GUADALUPE GAMEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Bernardino
County, Rodney A. Cortez, Judge. Affirmed.
Aaron Spolin, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, Steve Oetting and Anthony Da Silva,
Deputy Attorneys General for Plaintiff and Respondent.
Rolando Guadalupe Gamez appeals the summary denial of his petition
for resentencing under former Penal Code section 1170.95 (now section
1172.6)1 based on changes to the felony-murder rule and the natural and
probable consequences doctrine under Senate Bill No. 1437 (Stats. 2018, ch.
1015, § 4, eff. Jan. 1, 2019). He contends the superior court’s failure to issue
an order to show cause and grant him an evidentiary hearing was not
harmless error, and its order should be reversed. Because the appellate
record was not clear on whether the court appointed counsel at Gamez’s
request on his section 1172.6 petition, we asked the parties to provide
supplemental briefing on that question, and whether, if the court did not
appoint counsel, that omission was prejudicial error under People v. Watson
(1956) 46 Cal.2d 818 (Watson).
Having reviewed the supplemental briefing, we hold the trial court
erred by failing to appoint counsel at Gamez’s request (§ 1172.6, subd. (b)(3))
and solicit the People’s briefing (id., subd. (c)), but the error is harmless as
Gamez is ineligible for section 1172.6 relief as a matter of law. We therefore
affirm the order denying Gamez’s petition.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
We previously set forth the facts underlying Gamez’s convictions in our
unpublished opinion in People v. Jimenez (Jan. 15, 2015, D066212). We need
not repeat them in detail here. It suffices to say that in May 2009, Gilbert
Chavez was found dead in a desert area of Barstow Heights with gunshot
wounds to his wrist and the back of his head. The night before, witnesses
saw Chavez leave a party in a Nissan Altima with Claudio Rolando Jimenez,
Tomas Quintana, and Gamez, who were armed with a shotgun and .38-
1 Undesignated statutory references are to the Penal Code. Effective
June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6,
with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We refer to
the statute throughout as section 1172.6.
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caliber revolver. Tire impressions at the site of Chavez’s body, which was
less than a mile away from the party location, could have been consistent
with the Nissan Altima. One of the individuals who was in the vehicle later
told a detective how the murder happened—explaining that Jimenez shot
Chavez twice with a .38-caliber revolver—and that the situation occurred due
to a “political beef” in the men’s criminal street gang.
To the extent additional underlying facts from the record are necessary
to address Gamez’s contentions, we set them out below.
B. Procedural Background
The People charged Gamez with first degree willful, deliberate and
premeditated murder (§ 187; subd. (a); count 1); conspiracy to commit murder
(§ 182, subd. (a); count 2); and active participation in a criminal street gang
(§ 186.22, subd. (a); count 3). They alleged as to count 1 that a principal
personally used a firearm (§ 12022.53, subds. (b) & (e)(1)), personally and
intentionally discharged a handgun (§ 12022.53, subds. (c) & (e)(1)), and
personally used and discharged a handgun, proximately causing injury and
death to Chavez (§ 12022.53, subds. (d) & (e)(1)). They alleged that both
counts 1 and 2 were punishable in state prison for life and section 186.22,
subdivision (b)(5) applied.
In 2012, a jury convicted Gamez of the charged first degree murder,
conspiracy to commit murder, and active participation in a criminal street
gang. It found true all of the firearm and gang allegations made as to counts
1 and 2. The court sentenced Gamez to 3 years plus 50 years to life in prison,
consisting of 25 years to life for the count 1 murder, a consecutive term of 25
years to life for the personal firearm use allegation, a stayed term of 25 years
to life for the count 2 conspiracy, and a consecutive three-year determinate
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upper term on count 3. Following the appeal to this court (see People v.
Jimenez, supra, D066212), the court vacated the count 3 sentence.
In 2021, Gamez, representing himself, filed a lengthy petition for
resentencing under section 1172.6. In part, he alleged a complaint or
information was filed against him in 2011 that allowed the prosecutor to
proceed under the theory of felony murder or murder under the natural and
probable consequences doctrine, and/or under the theory that he aided and
abetted the crime by his presence at the crime scene and/or his association
with the shooter. He alleged he was convicted of first degree murder
“pursuant to either aiding and abetting the crime, felony murder rule or the
natural and probable consequences doctrine, which was argued to the jury by
the prosecutor” and that “he could not be now convicted of either [first] or
[second] degree murder based on the changes made retroactive under . . .
sections 188, and 189.” (Capitalization omitted.) He requested the court
appoint him counsel.
In the petition, Gamez stated: “. . . I was not the actual shooter in this
case, that the record shows and testimony of other witnesses at trial
demonstrated who the shooter was, as well as the cooperating witness with
the police in this matter shows this particular important fact, which will
demonstrate by the prosecutor’s arguments to the jury and the jury
instructions that [I] in fact qualify under either theory as argued by the
prosecutor in this case.” (Some capitalization omitted.) He also stated: “. . . I
did not, with intent to kill, aided, abetted [sic], counsel, commanded [sic],
induce, solicit, request, or assist the actual killer in the commission of the
murder in the first degree.” (Some capitalization omitted.) He further
stated: “I was not a major participant in the felony or did not act with
reckless indifference to human life during the course of the crime or felony
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based on the record as to how the crime was committed and my mere
presence during the events, without any showing that I did so [sic], it will
show that the record, together with other, post conviction discovery being
obtained . . . that I am not the killer [sic], that my mere presence, absent any
other showing of the violation of the requirements in . . . sections 188, and
189, I do qualify [sic] for the legal relief being requested in this petition for
resentencing . . . . under section [1172.6] et seq.” (Some capitalization
omitted.)
Though an April 2021 minute order states Gamez retained counsel
James Terrell for the matter, the minute order for the next hearing in June
2021 states that Terrell was not retained, and the court relieved him as
counsel for Gamez.
On June 21, 2021, at a hearing at which neither the district attorney
nor Gamez were present, the court summarily denied Gamez’s 1172.6
petition. In its ruling, the court acknowledged Gamez would be entitled to an
evidentiary hearing if he presented a prima facie showing—a reasonable
likelihood based on issues of fact—he was eligible for relief under section
1172.6. Reviewing the record of conviction and this court’s opinion, it found
Gamez was “a principal and co-conspirator to the murder and was neither
convicted under the felony murder rule nor the natural and probable
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consequences doctrine.”2 Accordingly, it ruled Gamez’s “conviction falls
outside the text and parameters of [Senate Bill No.] 1437.”
Gamez appeals from the court’s order.
DISCUSSION
I. Legal Principles
Senate Bill No. 1437, effective January 1, 2019, “amend[ed] 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 People v.
2 The court’s order provides more fully: “There are no provisions in the
text of [section 1172.6, subdivision] (c) that restrict the court’s analysis to the
petition. Therefore, in making a determination as to whether or not
petitioner has established a prima facie basis for relief, this court may
conduct its own independent review of the pertinent portions of the court file,
including the complaint, information, verdict forms and ‘[C]ourt of [A]ppeal
opinion, whether or not published, is [sic] part of the appellant’s record of
conviction.’ [Citation.] [¶] ‘The plain language of section [1172.6],
subdivision (a) limits relief to persons “convicted of felony murder or murder
under a natural and probable consequences theory [to] fil[ing] a petition with
the court . . . .” ’ [Citation.] Thus, no language in . . . [section 1172.6]
references relief to persons convicted as a principal to murder. [¶] In the
present case, petitioner was determined to be a ‘principal in the murder’ of
the victim as evidenced by the jury instructions, facts contained in the
probation officer’s report, the abstract of judgment, verdict forms, and
particularly the facts set forth in the unpublished Court of Appeal decision in
petitioner’s case. . . . [¶] The appellate court concluded the evidence at trial
collectively supported an inference that the parties, including Gamez,
positively or tacitly came to a mutual understanding to murder the victim.”
(Some capitalization omitted.)
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Strong (2022) 13 Cal.5th 698, 707-708 (Strong).) “[S]ection 189 . . . now limits
liability under a felony-murder theory principally to ‘actual killer[s]’
(. . . § 189, subd. (e)(1)) and those who, ‘with the intent to kill,’ aid or abet ‘the
actual killer in the commission of murder in the first degree’ (id., subd.
(e)(2)). Defendants who were neither actual killers nor acted with the intent
to kill can be held liable for murder only if they were ‘major participant[s] in
the underlying felony and acted with reckless indifference to human life, as
described in subdivision (d) of . . . [s]ection 190.2’—that is, the statute
defining the felony-murder special circumstance.” (Strong, at p. 708.) The
law eliminated second degree murder liability predicated on the natural and
probable consequences doctrine. (Strong, at p. 707, fn. 1, citing § 188, subd.
(a)(3) & People v. Gentile (2020) 10 Cal.5th 830, 842-843.)
Senate Bill No. 1437 created a procedural mechanism for those
convicted under the former law to petition the trial court for retroactive relief
under the amended law. (§ 1172.6, subd. (a); Strong, supra, 13 Cal.5th at p.
708.) “[T]he process begins with the filing of a petition containing a
declaration that all requirements for eligibility are met [citation], including
that ‘[t]he petitioner could not presently be convicted of murder or attempted
murder because of changes to . . . [s]ection 188 or 189 made effective January
1, 2019.’ ” (Strong, at p. 708, fn. omitted.) “When the trial court receives a
petition containing the necessary declaration and other required information,
the court must evaluate the petition ‘to determine whether the petitioner has
made a prima facie case for relief.’ [Citations.] If the petition and record in
the case establish conclusively that the defendant is ineligible for relief, the
trial court may dismiss the petition.” (Ibid.)
In People v. Lewis (2021) 11 Cal.5th 952 (Lewis), decided after the
superior court summarily denied Gamez’s petition, the California Supreme
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Court explained the role of a court faced with a section 1172.6 petition:
Petitioners who request counsel “are entitled to the appointment of counsel
upon the filing of 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.’ ”
(Ibid.; see also id. at p. 966 [“a complying petition is filed; the court appoints
counsel, if requested; the issue is briefed; and then the court makes [its]
prima facie determination”].) The court’s “prima facie inquiry . . . is limited.
. . . ‘ “[T]he 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.” ’ [Citation.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without first conducting
an evidentiary hearing.’ ” (Id. at p. 971.) Importantly, “[i]n reviewing any
part of the record of conviction at this preliminary juncture, a trial court
should not engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ ” (Id. at p. 972.) “[T]he ‘prima facie bar was
intentionally and correctly set very low.’ ” (Ibid.; see also People v. Porter
(2022) 73 Cal.App.5th 644, 651.)
If a defendant has made a prima facie showing of entitlement to relief,
“ ‘the court shall issue an order to show cause.’ ” (Strong, supra, 13 Cal.5th at
p. 708.) Once the court determines that a defendant has made a prima facie
showing, it “must [then] hold an evidentiary hearing at which the prosecution
bears the burden of proving, ‘beyond a reasonable doubt, that the petitioner is
guilty of murder or attempted murder’ under state law as amended by Senate
Bill [No.] 1437. [Citation.] ‘A finding that there is substantial evidence to
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support a conviction for murder, attempted murder, or manslaughter is
insufficient to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.’ [Citation.] ‘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.’ ” (Id. at p. 709.) However, “Senate
Bill [No.] 1437 relief is unavailable if the defendant was either the actual
killer, acted with the intent to kill, or ‘was a major participant in the
underlying felony and acted with reckless indifference to human life . . . .’ ”
(Id. at p. 710.)
II. The Superior Court Erred by Failing to Appoint Counsel and Obtain the
People’s Briefing
As stated, under Lewis, if Gamez filed a facially sufficient petition
under section 1172.6 and requested appointment of counsel, the superior
court was required to appoint counsel and the People were to file briefing
before the court could conduct any prima facie review. (Lewis, supra, 11
Cal.5th at pp. 957, 963; § 1172.6, subds. (b)(3), (c); People v. Porter, supra, 73
Cal.App.5th at p. 651.) Gamez asserts that he did not retain, and the court
did not appoint, counsel for him despite his request for counsel in his petition.
The People do not challenge his assertion.
The appointment of counsel provision is mandatory. (Lewis, supra, 11
Cal.5th at p. 963.) Because Gamez’s section 1172.6 petition is facially
sufficient, i.e., it contains all of the required language set out in section
1172.6, the court erred by summarily denying Gamez’s petition for
resentencing without appointing him counsel and then obtaining the People’s
response on the matter.
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III. The Error Was Harmless Under Watson
Lewis specifically addressed the prejudice standard to be applied to a
petitioner’s denial of his or her right to counsel at the outset of the section
1172.6 petitioning process. It held this right is purely statutory, and
therefore the court’s failure to appoint counsel is state law error only. (Lewis,
supra, 11 Cal.5th at p. 973.) Accordingly, “a petitioner ‘whose petition is
denied before an order to show cause issues has the burden of showing “it is
reasonably probable that if [he or she] had been afforded assistance of
counsel his [or her] petition would not have been summarily denied without
an evidentiary hearing.” ’ ” (Id. at p. 974; see Watson, supra, 46 Cal.2d at p.
836.) “[T]he error in failing to appoint counsel is harmless only if we can
determine that the record of conviction ‘ “ ‘contain[s] facts refuting the
allegations made in the petition.’ ” ’ ” (People v. Mejorado (2022) 73
Cal.App.5th 562, 572, review granted Mar. 23, 2022, S273159, review dism.
Oct. 12, 2022, quoting Lewis, at p. 971.) Although the superior court may not
engage in judicial factfinding or make credibility decisions prior to issuing an
order to show cause, under Lewis, “[t]he record of conviction will necessarily
inform the trial court’s prima facie inquiry under section [1172.6], allowing
the court to distinguish petitions with potential merit from those that are
clearly meritless.” (Lewis, at p. 971.)
Gamez contends he was harmed by the court’s failure to appoint
counsel, as it “prevented [him] from being able to give his own testimony
regarding the events in question, from arguing the elements were not met,
and from otherwise demonstrating his entitlement to resentencing . . . .” He
argues “[m]ore specifically” citing section 1172.6, subdivision (e) that his
petition’s “assertions. . . taken to be true, must be considered in light of [that
section]” and that “[a]t an evidentiary hearing, and with the assistance of
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counsel, it is expected that [he] would have demonstrated that he may have
been convicted of the target offense of false imprisonment, by way of one
example.” Gamez argues the evidence shows he “did not take any action to
facilitate the killing” and that “there was evidence [he] did not intend to kill
and did not aid and abet the killing.” Thus, he claims the court’s error
prevented him from “further developing the facts and putting the prosecution
to its burden.”
The People respond that the jury instructions establish that Gamez
was not tried or convicted on a now-invalid theory of accomplice liability.
They correctly point out the jury at Gamez’s trial was instructed with
instructions as to aiding and abetting, conspiracy, homicide general
principles, first or second degree murder with malice aforethought and first
degree murder (CALCRIM Nos. 400, 401, 415, 500, 520, 521), but not
CALCRIM Nos. 402 or 403 relating to the natural and probable consequences
doctrine, because that theory was not relied upon by the prosecution for the
murder count. They also point out the jury was not instructed on felony
murder and the amended information did not identify any underlying target
offense. Thus, they argue, “[w]ithout an underlying felony or target offense,
neither felony murder nor the natural and probable consequences doctrine
would have been viable theories when appellant was convicted” and “[w]here
‘no instructions were given on felony murder or murder under the natural
and probable consequences doctrine,’ the defendant is ‘not “[a] person
convicted of felony murder or murder under a natural and probable
consequences theory,” and he is therefore ineligible for relief as a matter of
law.’ ”
In People v. Medrano (2021) 68 Cal.App.5th 177, the Court of Appeal
held relief under section 1172.6 “is unavailable to a petitioner concurrently
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convicted of first degree murder and conspiracy to commit first degree
murder where both convictions involve the same victim” (id. at p. 179)
because “ ‘a conviction of conspiracy to commit murder requires a finding of
intent to kill . . . .’ ” (Id. at p. 184.) There, the petitioner, a participant but
not the shooter in a drive-by shooting into a crowd, was convicted of two
counts of first degree murder and conspiracy to commit murder. (Id. at p.
179.) The court instructed the jury on the natural and probable consequences
doctrine, but the prosecutor argued to the jury that the defendant harbored
the intent to kill even though he was not the actual perpetrator. (Id. at p.
183.) The Court of Appeal explained that the jury in effect found the
petitioner was a direct aider and abettor of the killings, and “ ‘Senate Bill
[No.] 1437 does not eliminate direct aiding and abetting liability for murder
because a direct aider and abettor to murder must possess malice
aforethought.’ ” (Medrano, at p. 183, quoting People v. Gentile, supra, 10
Cal.5th at p. 848.) Further, the Medrano court observed the law required an
intent to kill to sustain a conviction of conspiracy to commit first degree
murder. (Medrano, at p. 185.) Since intent to kill was an element of the
conspiracy to commit murder conviction, the jury necessarily based its
murder conviction on intent to kill, not on the natural and probable
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consequences doctrine. (Id. at p. 185.)3 The petitioner’s conviction for
conspiracy to commit first degree murder made him ineligible as a matter of
law for section 1172.6 relief. (Id. at p. 186.)
Here, the jury was instructed that to convict on the conspiracy to
commit murder in count 2, it was required to find that Gamez “intended to
agree and did agree with the other defendant or . . . Quintana to commit
murder” and that, “at the time of the agreement, the defendant and one or
more of the other alleged members of the conspiracy intended that one or
more of them would commit murder[.]” The trial court further instructed:
“The People must prove that the members of the alleged conspiracy had an
agreement and intent to commit murder.” The prosecutor argued that
Gamez was on trial for murder under two theories: aiding and abetting and
conspiracy. He argued the murder was in the first degree as it was willful
(meaning they “intended to kill”), deliberate and premediated: “[Jimenez]
fired the gun at least two times. Gamez helped him do that. Again, getting
3 In part, the court reasoned: “ ‘Under the natural and probable
consequences theory of aiding and abetting a murder, a defendant can be
found guilty of murder if he or she aids and abets a crime (i.e., the target
crime) and murder (i.e., the nontarget crime) is a natural and probable
consequence of that target crime.’ [Citation.] Here, the target offense was
first degree murder. We know this because appellant was convicted of
conspiracy to commit first degree murder. ‘[A] conviction of conspiracy to
commit murder requires a finding of intent to kill.’ ” (People v. Medrano,
supra, 68 Cal.App.5th at p. 182.) The court quoted People v. Beck & Cruz
(2019) 8 Cal.5th 548: “ ‘ “[A]ll conspiracy to commit murder is necessarily
conspiracy to commit premeditated and deliberated first degree murder.” ’ ”
(Medrano, at p. 183, quoting Beck & Cruz, at p. 641.) The Medrano court
found the following quote from Beck & Cruz applied with equal weight to the
petitioner: “ ‘Beck and Cruz were charged with conspiracy to murder, not
conspiracy to commit a lesser crime that resulted in murder. There is thus
no possibility they were found guilty of murder on a natural and probable
consequences theory.’ ” (Medrano, at p. 183, quoting Beck & Cruz, at p. 645.)
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[Chavez] to the location, getting him intoxicated before and finding the
location where he was at. It was deliberate. They drove out to the desert.
The location was a mile away from where they were off of a dirt road and it
was premediated. [¶] They picked [Chavez] up and took him to the party.
They got him drunk, they took him to the desert and that’s where they killed
him. This was willful, deliberate and premeditated, which means . . . both
defendants are guilty of first degree murder.”
Considering all of the instructions together, along with the jury’s guilty
verdicts on counts 1 and 2, the jury necessarily found Gamez intended to kill
Chavez, which was an element of conspiracy to commit murder, as well as
first degree murder that did not rely on the natural and probable
consequences doctrine. Under these circumstances, like Medrano, Gamez is
not entitled to section 1172.6 relief because a jury finding of intent to kill
supported the murder conviction without resort to the natural and probable
consequences doctrine. (People v. Medrano, supra, 68 Cal.App.5th at pp. 185-
186; see also People v. Coley (2022) 77 Cal.App.5th 539, 548; People v. Soto
(2020) 51 Cal.App.5th 1043, 1055, review granted Sept. 23, 2020, S263939,
review dism. Nov. 17, 2021; People v. Cortes (2022) 75 Cal.App.5th 198, 205
[petitioner’s “jury was not instructed on any theory of liability for murder or
attempted murder that required that malice be imputed to him,” thus he was
“ineligible for resentencing under section [1172.6]”]; People v. Daniel (2020)
57 Cal.App.5th 666, 677, review granted Feb. 24, 2021, S266336, review
dism., Dec. 1, 2021 [lower court’s failure to appoint counsel was harmless
where jury was not instructed on natural or probable consequences doctrine,
petitioner was not a person convicted under a natural and probable
consequences theory, and he was therefore “ineligible for relief [under section
1172.6] as a matter of law”].) In other words, the record of conviction
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conclusively establishes the absence of a predicate for section 1172.6 relief,
namely that “[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.” (§ 1172.6, subd. (a)(3).)
We are not persuaded to hold otherwise by Gamez’s reliance on
subdivision (e) of section 1172.6. That subdivision pertains to the petitioner’s
resentencing and comes into play only “if the petitioner is entitled to relief
pursuant to this section . . . .”4
In sum, Gamez is ineligible for resentencing as a matter of law.
Accordingly, the court’s error in failing to appoint counsel for him and
summarily denying his petition is harmless.
4 Section 1172.6, subdivision (e), provides: “The petitioner’s conviction
shall be redesignated as the target offense or underlying felony for
resentencing purposes if the petitioner is entitled to relief pursuant to this
section, murder or attempted murder was charged generically, and the target
offense was not charged. Any applicable statute of limitations shall not be a
bar to the court’s redesignation of the offense for this purpose.”
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DISPOSITION
The order denying Gamez’s section 1172.6 petition for resentencing is
affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
BUCHANAN, J.
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