People v. Corrales CA2/6

Filed 11/12/21 P. v. Corrales 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B303207
(Super. Ct. No. VA134775)
Plaintiff and Respondent, (Los Angeles County)

v. OPINION FOLLOWING
TRANSFER FROM
JOHNNY LUIS CORRALES, SUPREME COURT

Defendant and Appellant.

Johnny Luis Corrales appeals from the trial court’s
denial of his petition for resentencing. (Pen. Code,1 § 1170.95.)
He contends the court erred when it summarily denied the
petition because doing so ignored section 1170.95’s requirements
and violated his constitutional right to counsel. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In April 2014, brothers J.M. and P.M. were driving in
Pico Rivera when Corrales and two other gang members stepped

1 Statutory references are to the Penal Code.
in front of their car.2 Corrales asked the brothers where they
were from. They replied that they did not “bang.” Corrales then
asked if the brothers lived on a certain street in his gang’s
territory. When they replied that they did, Corrales said, “Bust
them.” As J.M. drove away, one of the gang members took a
pistol from his waistband and shot at the fleeing vehicle.
The next day, P.M. left his house with another
brother, F.M., and a friend, J.L., in the same vehicle J.M. had
been driving the day before. After they drove by a convenience
store where gang members congregated, they heard a car
approach. P.M. yelled for F.M. and J.L. to get down. Three
gunshots rang out, one of which struck P.M.
P.M. lost consciousness as he drove away, and his car
eventually crashed. F.M. got out of the car and ran to a nearby
hospital. When he returned, police had arrived at the scene of
the crash. P.M. was dead.
The following month, Corrales admitted to a police
informant that he was a gang member and had been involved in
both of the shootings. He claimed that the victims were members
of a local “tagging” crew that had ignored warnings from his
gang. He was not concerned about the gun that had been used to
murder P.M. because his fellow gang members had disposed of it.
Corrales also told the informant that even if police
recovered the gun he was not concerned about his fingerprints or
DNA being found on it because he did not shoot P.M. He said

2 Because Corrales pled guilty, we take the underlying facts
of the case from the transcript of the preliminary hearing.
Corrales stipulated that the transcript plus police reports and
discovery could be used as the factual basis for his plea. (See
People v. West (1970) 3 Cal.3d 595, 600.)

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that police showed him a photograph of the car used in the
shooting of P.M. and that the car belonged to his girlfriend. He
worried that police would be able to identify him as the driver if
they enhanced the photo.
Corrales later reiterated to the informant that he was
concerned that police might be able to identify him as the driver
of the car used in P.M.’s murder. He also told the informant
where the murder had occurred. He identified the type of gun
used to kill P.M., and said that P.M. had been shot in the torso
from close range.
One of Corrales’s fellow gang members also spoke to
a police informant. He told the informant that he was not
concerned that police had found the car used in P.M.’s murder
because the car belonged to Corrales’s girlfriend, thus any DNA
or fingerprints found inside was readily explainable. He was
similarly unconcerned about police finding the gun used to shoot
P.M. because he had wiped it down after the murder. He also
claimed that police could not identify him as the shooter.
The information charged Corrales with the murder of
P.M. (§ 187, subd (a)); the attempted murders of F.M., J.L., J.M.,
and P.M. (§§ 664/187, subd (a)); and two counts of shooting at an
occupied vehicle (§ 246). It also alleged that Corrales committed
his crimes for the benefit of a criminal street gang (§ 186.22,
subds. (b)(1)(C) & (b)(4)) and that a principal personally used a
firearm (§ 12022.53, subd. (b)), personally discharged a firearm
(id., subd. (c)), and personally discharged a firearm causing great
bodily injury or death (id., subd. (d)).
Corrales pled guilty to the first degree murder of
P.M. and the attempted premeditated murder of F.M. in 2018.
He also admitted that he committed his crimes for the benefit of a

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criminal street gang. The trial court sentenced him to 25 years to
life in state prison on the murder plus five years on the
attempted murder. It stayed the 10-year sentence enhancement
on the gang allegation admission.
In September 2019, Corrales petitioned for
resentencing pursuant to section 1170.95. In his petition,
Corrales declared that: (1) the information filed against him
allowed the prosecution to proceed on a felony murder theory or
natural and probable consequences theory, (2) he pled guilty to
first degree murder, (3) he could not now be convicted of first
degree murder based on amendments to sections 188 and 189,
and (4) he was not the actual killer, did not act with the intent to
kill, and was not a major participant in the underlying felony
who acted with reckless indifference to human life. Corrales also
requested the appointment of counsel.
The trial court summarily denied Corrales’s petition
without appointing counsel. According to the preliminary
hearing transcript, one of Corrales’s fellow gang members shot
and killed P.M. from the car Corrales was driving. The evidence
was thus “clear” that Corrales was convicted as a direct aider and
abettor. He could therefore still be convicted of murder under the
changes to the law that occurred after his conviction, and was
thus ineligible for resentencing as a matter of law.
On appeal, Corrales contended the trial court erred
when it summarily denied his resentencing petition because
doing so ignored section 1170.95’s requirements and violated his
constitutional right to counsel. (People v. Corrales (Jan. 19, 2021,
B303207) 2021 WL 163895 at p. *1 [nonpub. opn.].) We
disagreed, concluding that summary denial was proper because
Corrales was statutorily ineligible for section 1170.95 relief. (Id.

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at pp. *2-3.) We further concluded that the denial did not violate
Corrales’s constitutional rights. (Id. at p. *4.) The Supreme
Court subsequently granted Corrales’s petition for review, and
ordered us to vacate our decision and reconsider the matter in
light of People v. Lewis (2021) 11 Cal.5th 952 (Lewis).
DISCUSSION
Corrales contends the trial court erred when it
summarily denied his section 1170.95 resentencing petition
without appointing counsel. Having reconsidered the matter, we
agree. (Lewis, supra, 11 Cal.5th at pp. 961-970.) But the error
was harmless.
“A person convicted of felony murder or murder
under a natural and probable consequences theory may file a
petition” for resentencing if: (1) the “complaint, information, or
indictment . . . filed against [them] . . . allowed the prosecution to
proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine,” (2) the person “was
convicted of first degree or second degree murder following a trial
or accepted a plea offer in lieu of a trial at which [they] could be
convicted for first degree or second degree murder,” and (3) the
person “could not [now] be convicted of first or second degree
murder because of changes to [s]ection 188 or 189.” (§ 1170.95,
subd. (a).) If a trial court erroneously denies a section 1170.95
resentencing petition without appointing counsel, the error
requires reversal if the petitioner shows a reasonable probability
that the “‘“petition would not have been summarily denied
without an evidentiary hearing”’” had the court appointed
counsel. (Lewis, supra, 11 Cal.5th at p. 974; see People v. Watson
(1956) 46 Cal.2d 818, 836.) Here, no such reasonable probability
exists because Corrales has not shown that he was convicted of

5
either felony murder or murder under a natural and probable
consequences theory.
Felony murder
The preliminary hearing transcript shows that
Corrales admitted to a police informant that he drove the car
from which his fellow gang member shot and killed P.M. But
shooting at an occupied vehicle cannot be the basis for felony
murder. (People v. Chun (2009) 45 Cal.4th 1172, 1200.) And
Corrales identifies no other crime that could have provided the
basis for a felony murder conviction. Nor does the preliminary
hearing transcript reveal any such crime.
Corrales counters that, under the principles set forth
in People v. Gallardo (2017) 4 Cal.5th 120, the trial court was not
permitted to rely on the preliminary hearing transcript to find
him ineligible for section 1170.95 relief. Gallardo is inapposite.
As our colleagues in Division 7 have explained, “[t]he Supreme
Court in Gallardo held [that] a trial court may not rely on the
preliminary hearing transcript to determine the nature of [a]
defendant’s prior conviction for purposes of sentencing where the
record of conviction [does] not show whether the . . . conviction
under former section 245, subdivision (a)(1), was of assault with a
deadly weapon or assault with force likely to produce great bodily
injury.” (People v. Perez (2020) 54 Cal.App.5th 896, 907, review
granted Dec. 9, 2020, S265254 (Perez).) “The [Gallardo]
defendant had [pled] guilty to the prior assault, but she did not
admit whether she had used a deadly weapon.” (Ibid.) The
Supreme Court thus concluded that “the trial court had engaged
in improper judicial factfinding in violation of the Sixth
Amendment . . . ‘[b]ecause the relevant facts were neither found

6
by a jury nor admitted by defendant when entering her guilty
plea.’” (Id. at pp. 907-908.)
“In contrast to the sentencing at issue in Gallardo,
‘the retroactive relief petitioners are afforded by [section 1170.95]
is not subject to Sixth Amendment analysis.’” (Perez, supra, 54
Cal.App.5th at p. 908, alterations omitted.) “Rather, the
Legislature’s changes constituted an act of lenity that does not
implicate . . . petitioners’ Sixth Amendment rights.’ [Citations.]”
(Ibid., alterations omitted.) Accordingly, “Gallardo did not
prohibit the [trial] court from considering the preliminary
hearing transcript as part of [Corrales’s] record of conviction in
evaluating whether [he] had made a prima facie showing he was
entitled to relief under section 1170.95.” (Ibid.)
We also reject Corrales’s claim that the trial court’s
reliance on the preliminary hearing transcript to determine
whether he was eligible for resentencing violated the rule against
hearsay. While we agree that the transcript contained hearsay
(People v. Reed (1996) 13 Cal.4th 217, 224), and that Corrales’s
stipulation to it as part of the factual basis for his plea did not
constitute an adoptive admission that waived any hearsay issue
on appeal (see People v. Thoma (2007) 150 Cal.App.4th 1096,
1104), reliable hearsay is admissible in posttrial proceedings
(People v. Sledge (2017) 7 Cal.App.5th 1089, 1095). Preliminary
hearing transcripts are reliable hearsay. (Reed, at p. 223-224.)
Finally, we reject Corrales’s argument that even if
the trial court was permitted to rely on the preliminary hearing
transcript, it does not show that he acted with either the intent to
kill or reckless indifference to human life. (See People v. Eynon
(2021) 68 Cal.App.5th 967, 976-979.) Eynon is inapposite. In
that case, the defendant admitted that he committed first degree

7
felony murder; the issue was whether he did so with the requisite
intent and could thus still be convicted of murder under current
law. (Id. at pp. 976-978; see § 1170.95, subd. (a)(3).) Here, the
issue is not whether Corrales acted with the intent to kill or
reckless indifference to human life, but whether he was convicted
of felony murder. The preliminary hearing transcript reveals
that he was not.
Murder under a natural and probable consequences theory
In 2014, the Supreme Court held that a defendant
cannot be convicted of first degree murder under the natural and
probable consequences doctrine. (See People v. Chiu (2014) 59
Cal.4th 155, 166 (Chiu).) Corrales was convicted of first degree
murder four years later. His conviction thus could not have been
based on a natural and probable consequences theory.
People v. Offley (2020) 48 Cal.App.5th 588 and People
v. Rivera (2021) 62 Cal.App.5th 217, review granted June 9, 2021,
S268405, on which Corrales relies, are not to the contrary. In
each of those cases, the defendant was convicted of second degree
murder. (Offley, at p. 593; Rivera, at p. 225.) And at the time
each of those convictions occurred, a person could be convicted of
second degree murder under the natural and probable
consequences doctrine. (Offley, at p. 595, fn. 3; Rivera, at p. 232;
see Chiu, supra, 59 Cal.4th at p. 166.) Because both Offley’s and
Rivera’s murder convictions could have been based on that
doctrine, summary denial of their resentencing petitions was
improper. (Offley, at p. 599; Rivera, at p. 239.)
Unlike the Offley and Rivera defendants, Corrales
was convicted of first degree murder. And as set forth above, at
the time of his plea a person could not be convicted of first degree
murder under the natural and probable consequences doctrine.

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Corrales’s murder conviction thus could not have been based on
that doctrine.
That the information filed in Corrales’s case would
have allowed prosecutors to proceed on a natural and probable
consequences theory of murder—as was the case in Offley and
Rivera—is not conclusive here. That showing is only one of
section 1170.95’s requirements for relief. (See § 1170.95, subd.
(a)(1).) Another is that the petitioner was “convicted of felony
murder or murder under a natural and probable consequences
theory.” (Id., subd. (a), italics added.) Corrales was convicted of
neither. He has thus failed to show a reasonable probability that
his resentencing petition would not have been summarily denied
had the trial court appointed counsel. The error was harmless.
(People v. Simmons (2021) 65 Cal.App.5th 739, 749-750, review
granted Sept. 1, 2021, S270048.)
Right to counsel
Finally, Corrales contends the summary denial of his
resentencing petition violated his right to counsel and due
process and requires reversal. The Supreme Court has disagreed
with these contentions (see Lewis, supra, 11 Cal.5th at pp. 972-
973), as do we. The “trial court’s failure to appoint counsel to
represent [Corrales during the resentencing process] was state
law error only.” (Id. at p. 973.)

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 DISPOSITION
The trial court’s order denying Corrales’s petition for
resentencing pursuant to section 1170.95, entered November 5,
2019, is affirmed.
NOT TO BE PUBLISHED.

TANGEMAN, J.
We concur:

GILBERT, P. J.

PERREN, J.

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 Raul A. Sahagun, Judge

Superior Court County of Los Angeles

______________________________

Jonathan E. Demson, 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,
Assistant Attorney General, Kristin J. Inberg and J. Michael
Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.