Filed 11/16/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085582
Plaintiff and Respondent,
(Super. Ct. No. BF178201A)
v.
JESUS ANTONIO REYES, OPINION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Kern County. Tiffany Organ-
Bowles, Judge.
C. Athena Roussos, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J.
Valle, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018
Reg. Sess.). This amended both the felony-murder rule and the natural and probable
consequences doctrine 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. (People v.
Strong (2022) 13 Cal.5th 698, 707–708 (Strong).) Senate Bill No. 1437 also added Penal
Code section 1170.95, 1 now renumbered as section 1172.6. This created a procedural
mechanism for those convicted under the former law to seek retroactive relief. (§ 1172.6,
subd. (a); Strong, at p. 708; People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)
In 2021, appellant Jesus Antonio Reyes pleaded no contest to a charge of second
degree murder (§ 187, subd. (a)). Appellant admitted as true an enhancement allegation
regarding the use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)). The trial
court sentenced appellant to prison for 15 years to life.
About 15 months after he was sentenced, appellant filed a petition for resentencing
in the trial court, claiming he could not be convicted of murder based on the 2019
changes to the law. After giving the parties a chance to brief this issue, the court denied
the petition, concluding appellant was ineligible for resentencing because his conviction
had occurred after Senate Bill No. 1437 became effective.
The question in this appeal is whether a criminal defendant who was convicted
after Senate Bill No. 1437 became effective can nevertheless obtain resentencing relief
under section 1172.6. We hold that this procedure does not apply to defendants who—
like appellant in this case—were convicted under the current law. We therefore affirm
the court’s order denying appellant’s petition.
BACKGROUND
In 2020, an information was filed alleging that appellant had murdered a person in
violation of section 187, subdivision (a). It was alleged that appellant had killed the
victim with malice aforethought, and he did it willfully, deliberately, and with
premeditation.
1 All future statutory references are to the Penal Code unless otherwise noted.
2.
Appellant’s matter never went to trial. In 2021, he pleaded no contest to second
degree murder. At the change of plea hearing, the parties stipulated that a factual basis
existed from the police reports to support the plea.
In 2022, and acting in pro. per., appellant filed a form petition in the superior court
seeking to be resentenced. He requested the assistance of legal counsel. He alleged he
was entitled to be resentenced because the law regarding murder had been amended in
2019.
In June 2022, the superior court conducted proceedings regarding appellant’s
petition, and legal counsel appeared on his behalf. The court gave the parties an
opportunity to file briefs. In December 2022, the prosecutor filed a written opposition to
the petition, claiming that appellant was ineligible for resentencing because he was
convicted under the current law.
In January 2023, the court conducted a hearing on the matter. Appellant was
present through video conferencing, and he was represented by counsel. The parties
submitted the matter based on appellant’s petition and the prosecutor’s filed opposition.
The court denied the petition, concluding appellant was ineligible for resentencing
because his conviction had occurred in 2021 under the current law regarding murder.
DISCUSSION
I. The Trial Court did not Err in Denying the Petition for Resentencing.
Appellant argues that this record is devoid of any evidence that shows he is
ineligible for resentencing relief. He asserts that the date of his conviction should not bar
him from relief, and he notes that the statute does not state that the resentencing
procedure only applies to convictions occurring prior to January 1, 2019. He asks this
court to reverse the order denying his petition for resentencing, and remand this matter
with instructions for the lower court to issue an order to show cause and to hold an
evidentiary hearing.
3.
We reject appellant’s arguments and we conclude that the trial court did not err.
We independently review the court’s ruling. (People v. Pickett (2023) 93 Cal.App.5th
982, 989.) In analyzing section 1172.6, our goal is to effectuate legislative intent.
(Lewis, supra, 11 Cal.5th at p. 961.) We must avoid a statutory construction that would
produce absurd consequences, which we presume the Legislature did not intend. (People
v. Mendoza (2000) 23 Cal.4th 896, 908.)
In general, the following three conditions are required for a person to seek
resentencing under section 1172.6:
(1) A complaint, information or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of murder liability that is now invalid
(§ 1172.6, subd. (a)(1));
(2) Following a trial or the acceptance of a plea offer in lieu of a trial, the
petitioner was convicted of manslaughter, murder, or attempted murder (§ 1172.6, subd.
(a)(2)); and
(3) The petitioner could not presently be convicted of murder or attempted
murder “because of changes” brought by Senate Bill No. 1437 and made effective
January 1, 2019 (§ 1172.6, subd. (a)(3)).
An offender seeking resentencing must file a petition in the sentencing court and
serve it on statutorily enumerated persons. Among other requirements, the petition must
include a declaration from the petitioner that he is eligible for relief based on the three
conditions summarized above. (§ 1172.6, subd. (b)(1)(A)-(C).)
Once a petition meets the initial filing requirements, a briefing schedule is set.
(§ 1172.6, subd. (c).) After the parties have had an opportunity to submit briefs, the trial
court must hold a hearing to determine whether the petitioner has made a prima facie case
for relief. If the petitioner makes a prima facie showing for relief, the court must issue an
order to show cause and hold an evidentiary hearing. The prosecution then bears the
burden to prove beyond a reasonable doubt that the petitioner is guilty of murder (or its
4.
attempt) under the law as amended by Senate Bill No. 1437. (Ibid.; see also People v.
Wilson (2023) 14 Cal.5th 839, 869.)
Our high court holds that, when a petitioner files a facially sufficient petition, the
trial court must appoint counsel to represent the petitioner. The trial court may consider
the record of conviction to determine whether the petitioner makes a prima facie showing
only after the appointment of counsel and the opportunity for briefing has occurred.
(Lewis, supra, 11 Cal.5th at p. 957.) At the prima facie hearing, the court must take the
petitioner’s factual allegations as true. However, if the record contains facts refuting the
allegations made in the petition, the court may deny the petition without issuing an order
to show cause. (Id. at p. 971.)
In this matter, appellant is ineligible for resentencing for two reasons. First, in
order to be resentenced, the charging document filed against appellant must have allowed
the prosecution to proceed under a theory of murder liability that is now invalid.
(§ 1172.6, subd. (a)(1).) This requirement is not met here. The prosecution filed the
information against appellant in 2020. Thus, when this criminal proceeding was initiated,
the prosecution was precluded from proving the murder charge under a theory of imputed
malice. This deficiency amply demonstrates that the trial court did not err when it denied
appellant’s petition for resentencing.
Appellant’s claim fails for a second reason. In order to be resentenced, a
petitioner must allege that he could not presently be convicted of murder (or its attempt)
“because of changes” brought by Senate Bill No. 1437. (§ 1172.6, subd. (a)(3).) This
language demonstrates that appellant’s petition was properly denied. Appellant was not
convicted under the prior law, which permitted a theory of murder based on imputed
malice. Instead, he entered his change of plea in 2021 with the advice and consent of
legal counsel. When appellant entered his change of plea, the now invalid theories of
murder liability had already been eliminated. Consequently, appellant has already
received the benefits of Senate Bill No. 1437.
5.
Various courts have commented that the intent of this resentencing statute is to
provide relief to offenders who could not be convicted of murder under the current law.
(People v. Guillory (2022) 82 Cal.App.5th 326, 334.) In other words, section 1172.6
“provides a procedure whereby persons convicted of murder under a now-invalid theory
may petition to vacate their conviction.” (People v. Garcia (2022) 82 Cal.App.5th 956,
965.) Our high court has stated that this procedure was designed to provide retroactive
relief to defendants who were, or who could have been, convicted of murder (or its
attempt) under the prior law. (Lewis, supra, 11 Cal.5th at p. 957.)
Based on this record, appellant does not qualify for resentencing under section
1172.6. He is not the type of defendant this retroactive procedure was intended to
benefit, and any contrary interpretation of this statute would lead to absurd results. The
court did not err in denying the petition for resentencing, and a remand is not appropriate.
This claim fails and we will affirm the court’s order. 2
DISPOSITION
The trial court’s order denying the resentencing petition is affirmed.
LEVY, Acting P. J.
WE CONCUR:
POOCHIGIAN, J.
DE SANTOS, J.
2 The parties dispute whether or not certain comments by the trial court at the
change of plea hearing were sufficient to establish that appellant’s no contest plea
demonstrated that he murdered the victim with malice aforethought. We need not resolve
that dispute because appellant is otherwise ineligible for resentencing.
6.