People v. Fierro CA4/2

Filed 8/11/21 P. v. Fierro CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E074545

v. (Super.Ct.No. CR23644)

DAVID REY FIERRO, ORDER MODIFYING OPINION
AND DENYING PETITION FOR
Defendant and Appellant. REHEARING

[NO CHANGE IN JUDGMENT]

The renewed petition for rehearing is denied. The opinion filed in this matter on

July 13, 2021, is modified as follows:

Page 23, line 12, add the following after the words, “made by a jury.”

“Furthermore, the California Supreme Court’s recent decision in People v. Lewis

(July 26, 2021, S260598) ___ Cal. 5th ___ [2021 Cal. Lexis 5258] does not alter our

analysis here because, as we have held, defendant was convicted as the actual killer and

cannot establish a prima facie case as a matter of law. Thus, any errors by the trial court

1
in handling the prima facie stage are harmless. (Id. at p. __ [2021 Cal. Lexis 5258, *33-

34].)”

Page 23, line 14, delete “a formal appointment of counsel or.”

Except for these modifications, the opinion remains unchanged. The

modifications do not affect a change in the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
Acting P. J.
We concur:

SLOUGH
J.

RAPHAEL
J.

2
Filed 7/13/21 P. v. Fierro CA4/2 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E074545

v. (Super.Ct.No. CR23644)

DAVID REY FIERRO, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

James S. Thomson, 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, Assistant Attorney General, A. Natasha

Cortina, Robin Urbanski, and Lynne G. McGinnis, Deputy Attorneys General, for

Plaintiff and Respondent.

1
 In 1985, defendant and appellant David Rey Fierro robbed a husband and wife

outside the market they owned, and then shot and killed the husband. Defendant was

convicted of two counts of robbery (Pen. Code,1 § 211) and one count of first degree

murder (§ 187) with express jury findings that defendant was the actual shooter and

committed the murder during a robbery (§ 190.2, subd. (a)(17)(i)). (People v. Fierro

(1991) 1 Cal.4th 173, 200 (Fierro I).) In 1991, the California Supreme Court affirmed

the judgment in its entirety. (Id. at p. 255.)

Approximately 34 years later, defendant brought a petition for resentencing under

section 1170.95, which was enacted by the Legislature through its passage of Senate Bill

No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437). The trial

court denied the petition without holding an evidentiary hearing. Defendant appeals from

the trial court’s order, arguing that he made a prima facie showing that he falls within the

provisions of section 1170.95 and that the trial court erred in relying on the special

circumstance findings to conclude no prima facie showing had been made. We reject

these contentions and affirm the trial court’s order.

FACTUAL AND PROCEDURAL HISTORY2

“[A. THE PROSECUTION]

“On the evening of January 6, 1985, Sam Allessie was robbed and murdered in

front of the small grocery store which he owned with his wife, Trudy, in Glen Avon.

1 All future statutory references are to the Penal Code.

2 The factual background is taken from the Supreme Court’s opinion in Fierro I,
supra, 1 Cal.4th at pages 200-203.

2
Defendant, who was on parole for burglary, was arrested two days later. He was linked

to the crimes by eyewitness identifications, fingerprints which he left on the victim’s

truck, bloodstains in his car, and money from the robbery found in his wallet. As

recounted at trial, the facts of this tragic episode unfolded as follows.

“About 6 p.m. on the evening in question, Sam and Trudy Allessie were preparing

to close their store for the night. As was their custom on Sunday evenings, they planned

to deposit the day’s receipts in the night slot of their bank and then go to dinner. Trudy

had placed in her purse approximately $4,000, comprised of checks, money orders, and

about $1,000 in cash. The cash was in $50 and $100 denominations. Trudy observed

Sam look into his wallet, which he carried in his back pants pocket, for money to pay for

dinner.

“They left through the front doors of the market and approached Sam’s pickup

truck. Sam opened the passenger door for Trudy and circled around the back of the truck

to the driver’s side. As Trudy lost sight of Sam, she heard loud talking from the rear of

the truck. Suddenly she saw a ‘kid’ trying to unlock the driver’s door with Sam’s keys.

She became scared and heard Sam holler, ‘Watch your purse, honey.’ Trudy opened her

door to join her husband and at that moment was confronted by the same ‘kid’ she had

seen moments earlier. He demanded money. Trudy responded, ‘All right, all right,’ and

opened her purse and handed him a bundle of currency. He then grabbed the purse and

ran toward the rear of the truck, out of view.

3
 “Trudy thereupon started out of the truck and heard a shot.[3] Running to the front

of the store she found Sam on the ground, bleeding. As she screamed for help, a light

colored car sped out of the parking lot and turned onto Mission Boulevard toward the

freeway.

“About the time the Allessies were closing the store, Robert Gonzales was in a

telephone booth outside the market talking to his girlfriend. Gonzales heard a gunshot

and saw a man with a gun. Several seconds later, he observed the man fire a second shot

and then run toward a yellow Pacer. As Gonzales took cover, he saw a figure enter the

Pacer, which raced away in the direction of the freeway.

“That same evening, Carol DiCenso and her husband, Antonio, were driving on

Mission Boulevard in the area of Trudy’s Market. Carol was in the rear passenger seat.

As they approached the market, Carol observed three men standing in a group; one was

dressed in a white, short-sleeved T-shirt; the man in the center, Sam Allessie, was dressed

in dark clothing; the man to Sam’s left was dressed in a black sleeveless tank-top shirt.

As the DiCensos’ car drove past, Carol saw and heard a gunshot blast fired by the man in

the white T-shirt. Sam Allessie slumped to his knees and fell over. Seconds later, the

man in the white T-shirt straddled the fallen body, stretched out his arm, and fired

another shot into the victim.

“Carol DiCenso then observed the man in the white T-shirt bend over, put his

arms around the victim in a ‘hugging’ type motion and reach underneath him. In the

3 “Although Mrs. Allessie testified that she heard two shots, she was unsure when
the second shot occurred.”

4
meantime, the other man in the dark shirt, who had been standing nearby, started to run

away. The shooter followed, running toward a car which had its lights on. Moments

later, Benita Watson, who was a passenger in another car travelling down Mission

Boulevard, noticed a light colored AMC Pacer with a chrome luggage rack travelling in

the same direction. Ms. Watson heard a woman scream and heard shouts to ‘follow that

car.’ The Pacer then accelerated and pulled away.

“Sam was dead when the police arrived at the scene. His car keys and wallet were

missing. Blood spots and a bloody shoe print were observed leading away from the

body. Based on the descriptions of the assailant and the getaway car and conversations

with local law enforcement officers, Sergeant Turley of the Riverside Sheriff’s

Department focused on defendant as a possible suspect. Within several days, it was

discovered that four fingerprints lifted from Sam Allessie’s truck matched defendant’s

fingerprints. Shortly thereafter, defendant was detained and taken into custody. When he

was stopped, he was driving an AMC Pacer with a luggage roof rack. His girlfriend,

Laura Garcia (hereafter Laura Fierro),[4] and a small child were passengers in the car. A

search of Laura Fierro’s purse at the station disclosed a man’s wallet containing

defendant’s driver’s license. The wallet contained $650 in cash, comprised of four $100

bills and five $50 bills.

“Several weeks later, Mrs. Allessie identified defendant from both a photographic

and a live lineup. At trial, she identified defendant as the man who had robbed her.

4 “Defendant married Laura Garcia 10 months after his arrest.”

5
Robert Gonzales also picked defendant from a photographic lineup.[5] Although Carol

DiCenso could not identify the man she saw that evening, her description of the shooter

as wearing a light colored T-shirt matched Mrs. Allessie’s description of defendant.

“A search of Laura Fierro’s house, where defendant lived, revealed several white

short-sleeved T-shirts and a pink slip for the Pacer signed by defendant. Human blood

was found on the sole of one of defendant’s shoes. Testing could only determine that it

was human blood. A search of defendant’s Pacer revealed dried blood in the area of the

front passenger door. Testing determined that it was not that of defendant but was

consistent with the blood of Sam Allessie.

“An autopsy disclosed that the victim died of two gunshot wounds to the chest.

One wound was consistent with having been fired from a distance of up to 12 inches

while the victim was standing, allowing the bullet to exit through the back. The other

was a larger ‘contact’ wound, meaning the muzzle of the gun was in contact with the

victim’s clothes. The nature and size of the entry wound, the bullet’s trajectory, the

crush-type injuries to the back and the piece of bullet lodged in the back all indicated that

the victim was lying on the ground when the shot was fired. Dr. Hunter, who performed

the autopsy, determined that the smaller wound was inflicted first, and that the larger

‘contact’ wound was inflicted shortly thereafter. Either wound would have been fatal.

5 “Gonzales stated that he was ‘not positive,’ but identified defendant as the
shooter.”

6
 “[B. THE DEFENSE]

“The defense called several witnesses to show that a person other than defendant

was seen leaving the scene after the shooting. Hubert Joubert, who lived across the street

from Trudy’s Market, testified that he saw a Mexican male wearing some sort of

checkered jacket walking away from the scene shortly after the shooting. When this

individual was a block away he ‘took off running.’ Joubert also stated that he saw two

cars driving away from the scene on Mission Boulevard. Lori James, who also lived near

the market, stated that she heard two gunshots and saw two men running from the scene;

one of them had on a white T-shirt; she did not see the other because he had entered a

yellow Pacer. The man in the T-shirt entered the passenger side of the car. Charles

Dickey, who was driving his tow truck on Mission Boulevard, observed a Pacer similar to

defendant’s but with a different license plate.

“Defendant also called several deputy sheriffs who spoke with Trudy Allessie

shortly after the crimes; defendant attempted to impeach Mrs. Allessie’s trial testimony

with prior inconsistent statements as to precisely when and where she heard the two

shots, and the manner in which the robber took her purse.

“Defendant also called two expert witnesses. David Duncan testified that the lack

of damage to the bullet recovered from the victim’s back indicated that it had been fired

while the victim was standing, rather than lying on the ground. Jules Slaick testified as to

various distances at the crime scene and the location of light fixtures.

7
 “Defendant did not testify at the guilt phase of trial.” (Fierro I, supra, 1 Cal.4th at

pp. 200-203.)

C. PROCEDURAL HISTORY

A jury convicted defendant of first degree murder (§ 187) and two counts of

robbery (§ 211). (Fierro I, supra, 1 Cal.4th at p. 200.) “The jury found true the special

circumstance allegation that the murder was committed during the perpetration of a

robbery (§ 190.2, subd. (a)(17)(i)), and also returned a special finding that defendant shot

and killed the victim. As to each count the jury also found that defendant used a firearm

to commit the offense (§ 12022.5).” (Fierro I, at p. 200.) Defendant was sentenced to

death. (Ibid.) In 1991, from an automatic appeal, the California Supreme Court affirmed

the judgment in its entirety. (See id. at pp. 200-255.)

Sometime thereafter, defendant filed a petition for writ of habeas corpus in the

California Supreme Court alleging, in relevant part, that his trial counsel was ineffective

for failing to investigate and defend against the prosecutor’s theory of the case and failing

to investigate and present a third-party culpability defense. The California Supreme

Court summarily denied the petition. (See In re Fierro, S031671, Supreme Ct. Mins.,

Feb. 23, 1994.)

Defendant also filed a petition for writ of habeas corpus in the federal district court

in which he raised the above claim of ineffective assistance of counsel. On March 6,

2000, the federal district court granted defendant an evidentiary hearing on his claim

regarding counsel’s failure to consult with a criminalist or pathologist, to present a third-

8
party culpability defense, and to challenge the prosecution’s expert, but only insofar as

the claim implicated defendant’s eligibility for a death sentence. In pertinent part, the

district court explained: “Nonetheless, the arguable deficiency did not in any way impact

the jury’s guilty verdict. The jury found that Allessie was killed in the course of a

robbery. Allessie’s death at the time of the robbery was not merely a temporal

coincidence. The killing was a homicide; that much is indisputable; he died of a gunshot

wound. [¶] . . . Once the jury found that the killing occurred in the course of a robbery,

‘the jury ha[d] no option but to return a verdict of murder of the first degree, whether the

killing was done intentionally or accidentally.’ [Citation.]”

Thereafter, on June 18, 2003, defendant filed another state habeas petition in the

California Supreme Court, raising a claim that he was intellectually disabled within the

meaning of Atkins v. Virginia (2002) 536 U.S. 304 (Atkins), such that he was ineligible

for the death penalty. The California Supreme Court issued an order to show cause on

March 16, 2005, to be heard in the Riverside County Superior Court.

On July 21, 2010, the Riverside County Superior Court found defendant was

intellectually disabled within the meaning of Atkins and resentenced him to life without

the possibility of parole.

Subsequently, with respect to defendant’s federal habeas proceedings, the district

court decided that defendant’s penalty phase claims were moot in light of the fact he had

been resentenced to life in prison. As to defendant’s guilt phase claims, and particularly

his claim of ineffective assistance of counsel regarding counsel’s failure to investigate the

9
third-party culpability defense, the district court likewise concluded an evidentiary

hearing was no longer required. The district court reasoned: “By these claims, Petitioner

[defendant] seeks to attack the special circumstance finding by attempting to disprove

that he was the shooter and by arguing that he was unable to form the intent to kill

because of his impairment. As presented, the Court does not find that a hearing is

necessary to the resolution of these claims. The testimonial record and the supplemental

filings suffice to provide the Court a full picture of Petitioner’s arguments, and no

credibility issues are presented necessitating live testimony. Accordingly, no evidentiary

hearing will be held on these claims.”

The district court ultimately denied defendant’s petition in its entirety, including

his challenge to the special circumstance in which he claimed counsel was ineffective for

failing to investigate and present a third-party culpability defense, observing: “Petitioner

cannot show the requisite ‘reasonable probability’ that the result would have been

different at trial absent Morris’s [defense counsel’s] asserted error. Strickland [v.

Washington (1984)] 466 U.S. [668,] 693-94. Even if Morris could have obtained

evidence that Castrejon had been the other man at the scene, such evidence would not

have established that he was the shooter. Trudy Allessie testified that Petitioner was the

man who had robbed her, and that he had been wearing a white or light yellow t-shirt at

the time. (RT at 2878). Carole DiCenso was certain that the man in the white t-shirt shot

the victim. (RT at 3245-51). DiCenso described the other suspect as wearing a black

muscle t-shirt. (RT at 3245-51). Gonzalez also positively identified Petitioner as the

10
shooter. (RT at 3159-60, 3479-80). Based on this eyewitness testimony, there is no

reasonable likelihood that presentation of evidence as to the identity of an accomplice

would have changed the jury’s verdict. [Citation.]”

On November 26, 2019, counsel on defendant’s behalf filed a section 1170.95

petition for resentencing pursuant to section 1170.95, requesting that his murder

conviction be vacated based on changes to sections 188 and 189, as amended by Senate

Bill 1437, and asking to be resentenced. Defendant also requested the appointment of

counsel.6 The People filed a preliminary response, arguing defendant was ineligible for

relief.

On December 13, 2019, the trial court called the case in the presence of the

People, but not defendant or Attorney Thomson, and dismissed defendant’s petition.

On December 27, 2019, Attorney Thomson filed a motion for reconsideration on

defendant’s behalf, and the People filed a supplemental response.

The trial court heard the matter on January 15, 2020. Counsel with Attorney

Thomson’s office appeared on behalf of defendant and requested defendant be appointed

counsel and the petition be heard on the merits. Counsel also inquired as to the court’s

basis for its prior dismissal of defendant’s petition. The court explained that defendant’s

record of conviction established that he was “[s]tatutorily ineligible” and “not entitled to

6
Although the trial court never appointed counsel, defendant had the benefit of
counsel (attorney James S. Thomson) throughout the section 1170.95 proceedings.
Attorney Thomson had been appointed for defendant once his case was automatically
appealed to the California Supreme Court and has been representing defendant ever
since, including this appeal. (See Fierro I, supra, 1 Cal.4th 173.)

11
relief” because a jury had determined defendant “to be the actual slayer” and also found

true the robbery-murder special circumstance allegation.

Defense counsel argued that while the court could consider the appellate record, it

could also consider new evidence attached to the petition, which was the evidence

counsel had presented in conjunction with his federal habeas petition, in determining

whether a petitioner had made a prima facie showing. Defense counsel claimed the

evidence he presented with his federal habeas petition was new evidence that

demonstrated defendant could no longer be convicted under the new felony-murder law.

The trial court responded that defendant would have to have succeeded in his federal

habeas proceedings for the court to consider the new evidence. The court also stated it

could not consider that evidence where there had been a jury determination “he is guilty

under the law as it is contemplated after January of 2020.” Ultimately, the court

reaffirmed its ruling summarily denying the petition.

Defendant timely appealed from the court’s order denying his section 1170.95

petition.

DISCUSSION

Defendant contends the trial court erred in denying his petition for resentencing

without an evidentiary hearing because he made a prima facie showing he falls within the

provisions of section 1170.95. He also argues the trial court erred in relying on the jury’s

robbery felony-murder special circumstance findings.

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 A. SENATE BILL 1437 GENERALLY

Senate Bill 1437, which became effective on January 1, 2019, addresses certain

aspects of California law regarding felony murder and the natural and probable

consequences doctrine by amending sections 188 and 189. (People v. Martinez (2019) 31

Cal.App.5th 719, 722 (Martinez).) By amending sections 188 (defining malice) and 189

(defining the degrees of murder), Senate Bill 1437 changed “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 Martinez,

at pp. 722-723.)

Senate Bill 1437 also added section 1170.95. That section provides that “[a]

person convicted of felony murder or murder under a natural and probable consequences

theory may file a petition with the court that sentenced the petitioner to have the

petitioner’s murder conviction vacated and to be resentenced on any remaining counts.”

(§ 1170.95, subd. (a).) A person filing a petition under section 1170.95 is entitled to the

appointment of counsel, the opportunity for further briefing and a hearing if, in his

petition, he “makes a prima facie showing that he . . . is entitled to relief” under that

section. (§ 1170.95, subds. (c) & (d); People v. Lewis (2020) 43 Cal.App.5th 1128, 1139-

13
1140 (Lewis), review granted Mar. 18, 2020, S260598;7 People v. Verdugo (2020) 44

Cal.App.5th 320, 330 (Verdugo), review granted Mar. 18, 2020, S260493.)

A petition may be filed when the following three conditions are met: “(1) A

complaint, information, or indictment was filed against the petitioner that allowed the

prosecution to proceed under a theory of felony murder or murder under the natural and

probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or

second degree murder following a trial or accepted a plea offer in lieu of a trial at which

the petitioner could be convicted for first degree or second degree murder. [¶] (3) The

petitioner could not be convicted of first or second degree murder because of changes to

Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)-(3), italics

added.) A person may be convicted of murder, even after the 2019 changes to

sections 188 and 189, if he or she “was the actual killer.” (§ 189, subd. (e)(1).)

Courts of Appeal have interpreted section 1170.95 to provide for multiple reviews

of a petition by the trial court. (People v. Tarkington (2020) 49 Cal.App.5th 892, 897-

898 (Tarkington), review granted Aug. 12, 2020, S263219; People v. Cornelius (2020) 44

Cal.App.5th 54, 57-58 (Cornelius), review granted Mar. 18, 2020, S260410; Verdugo,

supra, 44 Cal.App.5th at pp. 326-328; People v. Drayton (2020) 47 Cal.App.5th 965,

974-975 (Drayton).) Subdivision (b) of section 1170.95 describes an initial review to

determine the facial sufficiency of the petition. (Verdugo, at pp. 327-328.) To be facially

7 Under California Rules of Court, rule 8.1115, we may rely on appellate cases
while review is pending as persuasive authority. (Cal. Rules of Court, rule 8.1115(e)(1),
eff. July 1, 2016.)

14
sufficient, the petition must contain the petitioner’s declaration that the petitioner is

eligible for relief according to the criteria in subdivision (a), the case number and year of

conviction, and whether the petitioner is requesting appointment of counsel. (§ 1170.95,

subd. (b)(1).) If the petition is missing any of this information “and cannot be readily

ascertained by the court, the court may deny the petition without prejudice.” (§ 1170.95,

subd. (b)(2).) This initial review amounts essentially to a ministerial review to ensure

that the right boxes are checked.

Section 1170.95, subdivision (c), then describes the next two levels of review and

sets forth the trial court’s obligations upon the submission of a complete petition. It

provides, “The court shall review the petition and determine if the petitioner has made a

prima facie showing that the petitioner falls within the provisions of this section. If the

petitioner has requested counsel, the court shall appoint counsel to represent the

petitioner. . . . If the petitioner makes a prima facie showing that he or she is entitled to

relief, the court shall issue an order to show cause.”

The first sentence in section 1170.95, subdivision (c), refers to a prebriefing, initial

prima facie review to preliminarily determine a petitioner’s statutory eligibility for relief

as a matter of law. (Verdugo, supra, 44 Cal.App.5th at p. 329.) In this step of review,

the trial court determines, based upon its review of readily ascertainable information in

the record of conviction and the court file, whether the petitioner is statutorily eligible for

relief. (Id. at pp. 329-330.) The court may review the complaint, the information or

indictment, the verdict form or the documentation for a negotiated plea, and the abstract

15
of judgment. (Ibid.) A Court of Appeal opinion is part of the defendant’s record of

conviction (id. at p. 333; Lewis, supra, 43 Cal.App.5th at pp. 1137-1138 [in determining

the sufficiency of a section 1170.95 petition, the court may review the record of

conviction, which includes the opinion in a defendant’s direct appeal]; People v.

Bascomb (2020) 55 Cal.App.5th 1077, 1080-1081, 1086 [same]; People v. Law (2020) 48

Cal.App.5th 811, 820-821 [same], review granted July 8, 2020, S262490), as are jury

instructions (People v. Soto (2020) 51 Cal.App.5th 1043, 1055, review granted Sept. 23,

2020, S263939). If these documents reveal ineligibility for relief, the trial court can

dismiss the petition. (Verdugo, at p. 330.)

But, if the record of conviction does not establish as a matter of law the

petitioner’s ineligibility for resentencing, evaluation of the petition proceeds to the

second prima facie review, in which “the court must direct the prosecutor to file a

response to the petition, permit the petitioner (through appointed counsel if requested) to

file a reply and then determine, with the benefit of the parties’ briefing and analysis,

whether the petitioner has made a prima facie showing he or she is entitled to relief.”

(Verdugo, supra, 44 Cal.App.5th at p. 330.) The trial court must accept as true the

petitioner’s factual allegations and make a preliminary assessment regarding whether the

petitioner would be entitled to relief if the factual allegations were proved. (Id. at p. 328.)

16
 “ ‘A prima facie showing is one that is sufficient to support the position of the

party in question.’ ” (Lewis, supra, 43 Cal.App.5th at p. 1137.) “ ‘ “The words ‘prima

facie’ mean literally, ‘at first view,’ and a prima facie case is one which is received or

continues until the contrary is shown and can be overthrown only by rebutting evidence

adduced on the other side.” ’ ” (People v. Nunez (2020) 57 Cal.App.5th 78, 88, review

granted Jan. 13, 2021, S265918.) When conducting a prima facie review, the court’s

“role . . . is simply to decide whether the petitioner is ineligible for relief as a matter of

law, making all factual inferences in favor of the petitioner.” (Verdugo, supra, 44

Cal.App.5th at p. 329, italics added.) Whether a petitioner has made the requisite prima

facie showing is a predominantly legal question. We thus review the trial court’s ruling

de novo. (Drayton, supra, 47 Cal.App.5th at p. 981.)

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. (§ 1170.95, subd. (d)(1).) At such a hearing, both

the prosecution and the defense may rely on the record of conviction or may offer new or

additional evidence. (§ 1170.95, subd. (d)(3).) “[T]he burden of proof shall be on the

prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for

resentencing.” (§ 1170.95, subd. (d)(3); Martinez, supra, 31 Cal.App.5th at pp. 723-724.)

17
 B. ANALYSIS

Here, the trial court correctly concluded that defendant did not make out a prima

facie case for relief because the record of conviction establishes, as a matter of law, that

he is not statutorily eligible for relief. The record of defendant’s conviction indisputably

shows he was convicted as the actual killer who committed felony murder with the intent

to kill. The jury was instructed on the elements of premeditated and deliberate first

degree murder as well as first degree felony murder.8 The jury was also instructed on

principles of aiding and abetting. Moreover, the jury was specifically instructed to

determine whether defendant was the person who actually shot and killed the victim. The

jury expressly found that defendant “shot and killed” the victim and that he personally

used a firearm in the commission of the murder. The jury also found true the robbery-

felony murder special circumstance (§ 190.2, subd. (a)(17)(i)) allegation that defendant

committed the murder while engaged in the crime of robbery. (Fierro I, supra, 1 Cal.4th

at p. 200.) The jury’s findings demonstrate that they actually found defendant guilty on a

theory where he was the actual killer. The jury’s findings of fact necessarily label

defendant as the “actual killer” and hence defendant is ineligible for relief under

section 1170.95 as a matter of law. (E.g., Tarkington, supra, 49 Cal.App.5th at p. 899

[the defendant was actual killer]; Cornelius, supra, 44 Cal.App.5th at pp. 56, 58 [the

defendant personally and intentionally discharged a firearm causing death (§ 12022.53,

subd. (d)), and, as the actual killer, was ineligible for 1170.95 relief].)

18
 Defendant does not dispute that the jury found him to be the actual killer but

argues “this determination was based on invalid forensic evidence and counsel’s failure

to present evidence of third-party culpability.” He further contends that the habeas

evidence he presented with his petition establishes a prima facie case entitling him to

relief because “he could not be convicted of murder under the current definition and in

consideration of the evidence showing he was not the shooter.” We disagree.

Although there were purported ineffective assistance of counsel issues with trial

counsel’s presentation of the forensic evidence and counsel’s failure to present evidence

of third-party culpability, the jury’s findings were neither vacated nor reversed.

Defendant never directly challenged the sufficiency of the evidence supporting the jury’s

finding that he was the actual killer. In addition, neither the state nor the federal courts

have granted defendant’s habeas petitions on the issue of guilt. Further, the courts that

have considered the merits of defendant’s ineffective assistance of counsel claims have

rejected it. The California Supreme Court summarily denied the claim. The federal

district court also denied the ineffective assistance of counsel contention, noting any error

was harmless due to the compelling eyewitness testimony identifying defendant as the

shooter.

8 As to first degree felony murder, the jury was instructed as follows: “The
unlawful killing of a human being, whether intentional, unintentional or accidental, which
occurs as a result of the commission of or attempt to commit the crime of robbery, and
where there was in the mind of the perpetrator the specific intent to commit such crime, is
murder of the first degree.”

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 Defendant argues that the federal court rejected his ineffective assistance of

counsel claim under a higher standard than the prima facie showing required for a

section 1170.95 petition and that the federal court originally granted an evidentiary

hearing on the claim. However, this finding does not demonstrate defendant could not

now be convicted of murder under the amended statutes because of changes to the law.

In other words, defendant could still be convicted of murder as the actual killer, despite

changes to sections 188 and 189. Section 1170.95 does not grant trial courts the authority

to relitigate the validity of jury findings. Defendant thus may not challenge the jury’s

findings he was the actual killer who personally shot and killed the victim.

During oral argument, defense counsel appeared to argue that defendant made a

prima facie showing entitling him to an evidentiary hearing because he had presented

new evidence via expert testimony and new law concerning eyewitness testimony.9 But,

to be eligible for resentencing under section 1170.95, defendant must show that he “could

not be convicted of first or second degree murder because of changes to Section 188 or

189 made” in Senate Bill 1437. (§ 1170.95, subd. (a)(3), italics added.) Defendant has

not shown he could not now be convicted of murder due to changes in section 188 or 189.

This is the first hurdle defendant must overcome before he is entitled to an evidentiary

hearing under subdivision (d) of section 1170.95.

9 Prior to oral argument, defense counsel requested judicial notice of an
August 28, 2018 letter from the California Judicial Council to the Honorable Nancy
Skinner (author of Senate Bill 1437) and a September 13, 2018 letter from the California
Judicial Council to then-Governor Edmund G. Brown, Jr. We deny the May 27, 2021
request as unnecessary to the disposition of this appeal.

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 The jury here unequivocally found defendant was the actual killer; the person

who actually shot and killed the victim. As the Court of Appeal in People v. Allison

(2020) 55 Cal.App.5th 449 observed: “We do not believe it is reasonable to interpret

section 1170.95 as allowing for . . . challenges based on attacks on prior factual findings.

Nothing in the language of section 1170.95 suggests it was intended to provide redress

for allegedly erroneous prior factfinding. In particular, subdivision (a)(3) of

section 1170.95 says nothing about erroneous prior findings or the possibility of proving

contrary facts if given a second chance. Rather, it requires that the petitioner could not be

convicted of murder because of the changes to sections 188 and 189, not because a prior

fact finder got the facts wrong. The purpose of section 1170.95 is to give defendants the

benefit of amended sections 188 and 189 with respect to issues not previously

determined, not to provide a do-over on factual disputes that have already been resolved.”

(Allison, at p. 461.)

Nothing in Senate Bill 1437 suggests the Legislature intended to provide a “do-

over” for allegedly erroneous prior factual findings or defendants an opportunity to retry

their cases by challenging their convictions in a section 1170.95 petition. Rather, courts

have allowed defendants to challenge their convictions or jury findings by way of habeas

corpus. (See In re Scoggins (2020) 9 Cal.5th 667, 673 [“Where a decision clarifies the

kind of conduct proscribed by a statute, a defendant whose conviction became final

before that decision ‘is entitled to post-conviction relief upon a showing that his [or her]

conduct was not prohibited by the statute’ as construed in the decision”]; People v. Jones

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(2020) 56 Cal.App.5th 474, 481-482 (Jones) [petition for writ of habeas corpus proper

avenue to challenge special circumstance finding], review granted Jan. 27, 2021,

S265854.) If defendant is entitled to relief based on new evidence or law concerning

eyewitness testimony, the avenue for such relief is not section 1170.95, but a petition for

writ of habeas corpus. (See People v. Murillo (2020) 54 Cal.App.5th 160, 168, review

granted Nov. 18, 2020, S264978.)

In a habeas proceeding challenging a jury’s findings based on new evidence, the

petitioner bears the burden of demonstrating that the finding must be vacated for

insufficient evidence. (People v. Duvall (1995) 9 Cal.4th 464, 474.) A trial court’s

determination of whether the petitioner has made a prima facie showing entitling them to

statutory relief under section 1170.95, subdivision (c), is based upon its review of readily

ascertainable information in the record of conviction and the court file and not a

reweighing of the jury’s findings or the evidence. (Verdugo, supra, 44 Cal.App.5th at

pp. 329-330.) The determination of whether the petitioner is statutorily eligible for

relief as a matter of law “does not require resolution of disputed facts; the facts are a

given”—the court simply determines if the record of conviction shows the petitioner is

entitled to relief. (In re Miller (2017) 14 Cal.App.5th 960, 980.) “ ‘When a defendant

seeks habeas corpus relief, the underlying judgment is presumed valid. . . . In a habeas

corpus challenge to the sufficiency of the evidence to support a [ ] [jury’s] finding, the

“standard of review . . . is whether, when evidence that is reasonable, credible, and of

solid value is viewed ‘in the light most favorable to the prosecution, any rational trier of

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fact could have found the essential elements of the allegation beyond a reasonable

doubt.’ ” ’ ” (Jones, supra, 56 Cal.App.5th at p. 483, quoting In re Bennett (2018) 26

Cal.App.5th 1002, 1018, quoting People v. Clark (2016) 63 Cal.4th 522, 610.)

For the reasons explained, a petition under section 1170.95 is not the appropriate

vehicle for asserting a challenge to the jury’s finding that defendant was the actual killer

who personally shot the victim. Section 1170.95 does not permit a court to ignore

express findings of a jury or to supplant them with new findings based on evidence

provided at a hearing where the People would again have the burden of proof beyond a

reasonable doubt. If defendant believes the jury’s findings lack evidentiary support, the

appropriate procedure for challenging it is by a petition for habeas corpus. A

section 1170.95 petition cannot be utilized as a new trial to relitigate the factual findings

made by a jury.

Based on the foregoing reasons, we conclude the petition was properly denied

without a formal appointment of counsel or an evidentiary hearing.10 (See, e.g., Lewis,

supra, 43 Cal.App.5th at pp. 1138-1139 [it would be a “ ‘gross misuse of judicial

resources’ ” to issue an order to show cause or appoint counsel where a review of the

court record established ineligibility as a matter of law].)

10 Because we find the record of defendant’s conviction indisputably shows he
was convicted as the actual killer and thus statutorily ineligible for relief as a matter of
law, we need not determine whether the trial court erred in relying on the jury’s robbery
felony-murder special circumstance findings in denying defendant’s section 1170.95
petition.

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 DISPOSITION

The order denying defendant’s resentencing petition under section 1170.95 is

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
Acting P. J.
We concur:

SLOUGH
J.

RAPHAEL
J.

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