Filed 7/23/21 P. v. Resendez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B306040
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA087669
v.
JOSE ISABEL RESENDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Reversed and remanded
with instructions.
Nancy J. King, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Roberta L. Davis and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437),
effective January 1, 2019, amended the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder. Under Penal Code section 1170.95,1 a person
who was convicted under theories of felony murder or murder
under the natural and probable consequences doctrine, and who
could not be convicted of murder following the enactment of SB
1437, may petition the sentencing court to vacate the conviction
and resentence on any remaining counts.
In 2009, defendant and appellant Jose Isabel Resendez pled
guilty to second-degree murder. In 2019, he filed a petition for
recall and resentencing under section 1170.95. The trial court
denied the petition, concluding that although Resendez was
convicted under a felony-murder theory, a review of the facts
showed he was a major participant in the underlying robbery who
acted with reckless indifference to human life. The court made
this factual determination without first issuing an order to show
cause and holding an evidentiary hearing.
On appeal, Resendez argues because he was convicted
under the felony-murder rule, he therefore made a prima facie
showing of entitlement to relief under section 1170.95, and the
trial court erred by concluding he was a major participant who
acted with reckless indifference to human life without first
issuing an order to show cause and holding an evidentiary
hearing. The Attorney General agrees that the trial court erred in
this regard. We agree with the parties and reverse the denial of
1 All undesignated statutory references are to the Penal
Code.
2
Resendez’s petition. On remand, the trial court is directed to
issue an order to show cause and hold an evidentiary hearing on
whether Resendez is entitled to relief under section 1170.95. At
this hearing, the parties may introduce new or additional
evidence on whether Resendez was a major participant in the
robbery who acted with reckless indifference to human life.
BACKGROUND
In 2009, Resendez pled guilty to second degree murder
(§ 187, subd. (a)) in exchange for his testimony at the trial of
codefendant Leonardo Cisneros. In 2014, after Cisneros’s trial,
the court sentenced Resendez to 15 years to life in state prison.2
In 2019, Resendez filed a petition for resentencing under
section 1170.95. The prosecution filed an opposition, which
included a transcript of Resendez’s testimony from Cisneros’s
trial. The prosecution acknowledged Resendez had been convicted
under the felony-murder rule, but argued he was a major
participant in the underlying robbery who acted with reckless
indifference to human life. Resendez’s attorney filed a reply.
The trial court denied Resendez’s petition. It concluded
Resendez had not made a prima facie showing of entitlement to
relief because the facts showed he was a major participant who
acted with reckless indifference to human life. Resendez timely
appealed.
2 Cisneros was sentenced to death. His automatic appeal is
pending before the California Supreme Court in case number
S221158.
3
DISCUSSION
The Trial Court Is Directed to Issue An Order to Show
Cause and Hold An Evidentiary Hearing to Determine
Whether Resendez Is Entitled to Section 1170.95 Relief
A. Governing Principles
1. SB 1437’s Limitation of Accomplice Liability for
Murder
The Legislature enacted SB 1437 “to amend 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).) SB 1437 amended
section 189 to provide that a participant in qualifying felonies
during which death occurs generally will not be liable for murder
unless the person was (1) “the actual killer,” (2) a direct aider and
abettor in first degree murder, or (3) “a major participant in the
underlying felony [who] acted with reckless indifference to
human life[.]” (§ 189, subd. (e).)3
SB 1437 also “added a crucial limitation to section 188’s
definition of malice for purposes of the crime of murder.” (People
v. Verdugo (2020) 44 Cal.App.5th 320, 326, fn. omitted, rev.
granted, S260493, Mar. 18, 2020 (Verdugo).) Under new section
3 This limitation does not apply “when the victim is a peace
officer who was killed while in the course of the peace officer’s
duties, where the defendant knew or reasonably should have
known that the victim was a peace officer engaged in the
performance of the peace officer’s duties.” (§ 189, subd. (f).)
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188, subdivision (a)(3), “‘[m]alice shall not be imputed to a person
based solely on his or her participation in a crime.’ [Citations.]”
(People v. Lewis (2020) 43 Cal.App.5th 1128, 1135, fn. omitted
(Lewis), rev. granted, S260598, Mar. 18, 2020.)4 “As a result, the
natural and probable consequences doctrine can no longer be
used to support a murder conviction. [Citations.]” (Ibid.)
2. Petitions to Vacate Prior Convictions
SB 1437 also added section 1170.95 to the Penal Code. This
section permits individuals who were convicted of felony murder
or murder under a natural and probable consequences theory, but
who could not be convicted of murder following SB 1437’s changes
to sections 188 and 189, to petition the sentencing court to vacate
the conviction and resentence on any remaining counts.
(§ 1170.95, subd. (a).) A petition for relief under section 1170.95
must include: “(A) A declaration by the petitioner that he or she
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
4 The review order in People v. Lewis states: “The issues to be
briefed and argued are limited to the following: (1) May superior
courts consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief
under Penal Code section 1170.95? (2) When does the right to
appointed counsel arise under Penal Code section 1170.95,
subdivision (c).” (Lewis, S260598, Supreme Court Mins. Mar. 18,
2020.) The review order in Verdugo states: “Further action in this
matter is deferred pending consideration and disposition of a
related issue in People v. Lewis, S260598 (see Cal. Rules of Court,
rule 8.512(d)(2)), or pending further order of the court.” (Verdugo,
S260493, Supreme Court Mins., Mar. 18, 2020.)
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the petitioner requests the appointment of counsel.” (§ 1170.95,
subd. (b)(1).) If any of the information is missing “and cannot be
readily ascertained by the court, the court may deny the petition
without prejudice to the filing of another petition and advise the
petitioner that the matter cannot be considered without the
missing information.” (§ 1170.95, subd. (b)(2).)
If the petition contains the required information, section
1170.95, subdivision (c), prescribes “a two-step process” for the
court to determine if it should issue an order to show cause.
(Verdugo, supra, 44 Cal.App.5th at p. 327.) First, the court must
“review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section.” (§ 1170.95, subd. (c).) If the petitioner has made
this initial prima facie showing, and has requested that counsel
be appointed, he or she is then entitled to appointed counsel.
(Ibid.; Lewis, supra, 43 Cal.App.5th at p. 1140 [“trial court’s duty
to appoint counsel does not arise unless and until the court
makes the threshold determination that petitioner ‘falls within
the provisions’ of the statute.”].) The court then reviews the
petition a second time. If, in light of the parties’ briefing, it
concludes the petitioner has made a prima facie showing that he
or she is entitled to relief, it must issue an order to show cause.
(§ 1170.95, subd. (c); Verdugo, supra, 44 Cal.App.5th at p. 328.)
“Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts.” (Verdugo, supra, 44 Cal.App.5th at p. 327,
citing § 1170.95, subd. (d)(1).) At the hearing, the parties may
rely on the record of conviction or present “new or additional
evidence” to support their positions, and “the burden of proof
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shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing.” (§ 1170.95,
subd. (d)(3).)
B. Analysis
Because the issue presented in this appeal is a pure
question of law concerning the procedures section 1170.95
affords, we apply a de novo standard of review. (See In re T.B.
(2009) 172 Cal.App.4th 125, 129-130.) We agree with the parties
that the trial court erred by concluding Resendez was a major
participant who acted with reckless indifference to human life
without first issuing an order to show cause and holding an
evidentiary hearing. In assessing whether a petitioner has made
a prima facie showing of entitlement to relief under section
1170.95, “the trial court should not weigh evidence or make
credibility determinations.” (People v. Drayton (2020) 47
Cal.App.5th 965, 968.) “At this stage of the petition review
process, governed by section 1170.95(c), the trial court should not
have engaged in this factfinding without first issuing an order to
show cause and allowing the parties to present evidence at a
hearing, as described in section 1170.95, subdivision (d).” (Id. at
p. 982, fn. omitted.) We therefore reverse the trial court’s order
denying the petition and remand with directions to issue an order
to show cause under section 1170.95, subdivision (c) and hold a
hearing under section 1170.95, subdivision (d). We express no
opinion concerning Resendez’s entitlement to relief following the
hearing.
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DISPOSITION
The order denying Resendez’s section 1170.95 petition is
reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
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