People v. Martinez ( 2019 )


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  • Filed 1/24/19
    CERTIFIED FOR PARTIAL PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FIVE
    THE PEOPLE,                                B287255
    Plaintiff and Respondent,           (Los Angeles County
    Super. Ct. No. NA095527)
    v.
    JOSE ANGEL MARTINEZ,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County, Laura Laesecke, Judge. Affirmed.
    Steven Schorr, under appointment by the Court of Appeal,
    for Defendant and Appellant.
    Xavier Becerra, Attorney General, Gerald A. Engler, Chief
    Assistant Attorney General, Lance E. Winters, Senior Assistant
    Attorney General, Margaret E. Maxwell, Supervising Deputy
    
    Pursuant to California Rules of Court, rules 8.1105(b) and
    8.1110, the opening paragraph, Part II.C, and the disposition
    section of this opinion are certified for publication.
    Attorney General, Thomas C. Hsieh, Deputy Attorney General,
    for Plaintiff and Respondent.
    2
    When Los Angeles County firefighters responded to a call of
    an SUV on fire, they discovered a dead body in the back of the
    burning vehicle. The body was identified as the late Christopher
    Waters (Waters), and two high-school seniors, defendant and
    appellant Jose Angel Martinez (defendant) and Adrian Berumen
    (Berumen) were arrested and charged with Waters’ murder. A
    jury found defendant guilty of first degree murder and arson.1 In
    the unpublished portion of our opinion we decide two
    instructional error claims defendant raises in his principal briefs
    on appeal: (1) whether the trial court prejudicially erred in giving
    the jury self-defense instructions based on pre-trial statements
    defendant made to investigators even though, at trial, defendant
    did not ask for self-defense instructions and did not assert, when
    testifying, that he acted in self-defense; and (2) whether the trial
    court should have given a lesser related offense instruction
    absent the prosecution’s concurrence. In the published portion of
    our opinion, we decide the issue defendant raises in supplemental
    briefing, namely, whether on direct appeal he can avail himself of
    the ameliorative benefits of Senate Bill 1437, which changes the
    law on what mental state is required to be guilty of murder.
    [Parts I, II.A, and II.B, below, are deleted from
    publication. See post at p. 23 for where publication is to
    resume.]
    1
    The criminal proceedings against Berumen are not before
    us in this appeal.
    3
    I. BACKGROUND
    The Los Angeles County District Attorney charged
    defendant with one count of murder, in violation of Penal Code
    section 187, subdivision (a),2 and one count of arson of property of
    another, in violation of section 451, subdivision (d). At trial on
    these charges, the prosecution called more than twenty witnesses
    and defendant put on a defense case—including testifying on his
    own behalf. We summarize the key evidence pertinent to the
    issues raised on appeal.
    A.   Events Leading Up to the Murder
    In April 2013, defendant was a senior in high school and
    considered Berumen his best friend. Berumen did some work at
    a screen printing shop called Top Hat Screen and Design. The
    murder victim, Waters, had also done some t-shirt printing work
    at the shop, including for Berumen.
    Two days before the murder, on April 21, 2013, Berumen
    exchanged text messages and phone calls with Waters.3 The text
    messages concerned an apartment Waters might want to lease.
    Berumen and Waters made tentative plans to meet a couple days
    later, on Tuesday, April 23. Toward the end of their exchange,
    Berumen wrote, “I will hyu [hit you up] monday night to see
    where we are at from there bruh.”
    2
    Undesignated statutory references that follow are to the
    Penal Code.
    3
    A cell phone extraction report indicated Berumen
    attempted to delete many of the text messages recovered from his
    phone and introduced in evidence at trial.
    4
    Berumen continued to communicate with Waters the next
    day, sending him a text message asking if he would want to see
    “that apartment” on Tuesday. Later that night, Berumen sent a
    text message to an individual identified as “Marcos Baby” in his
    phone, saying, “[I]mma gank[4] that nigguh tommarow but I gotta
    show him $50 for him to co[m]e.” That same night, Berumen was
    also exchanging phone calls and text messages with defendant.
    In the morning on the day of the murder, April 23, 2013,
    the owner of the Top Hat screen printing business saw Waters at
    the shop packing up boxes for delivery. Waters then delivered a
    t-shirt order to a customer. He was paid in cash and seemed
    normal when he delivered the shirts. The customer sent Waters
    a follow-up text message later in the day, but she never received
    a response.
    Defendant and Berumen exchanged calls and text
    messages that same morning. Cell phone location evidence
    indicated defendant was in Long Beach, where Berumen resided,
    by around 8 a.m. Berumen also exchanged text messages with
    Waters, ending with a text at about 10:21 a.m. in which Berumen
    told Waters, “Let me [know] when you[’re] out front.”
    Cell phone location evidence put defendant in San Pedro by
    about 2:00 p.m. on April 23. Not long thereafter, Anne Albritton
    (Albritton) was walking along First Street near her home when
    she encountered two “young teen adults” walking “in a fast
    manner.” Albritton stopped and spoke to the young men. The
    4
    At trial, a Los Angeles County Sheriff’s Department
    detective testified “gank” meant to rob or steal something from
    someone.
    5
    larger and heavier of the two5 told her a car was on fire up the
    street. When Albritton asked them if they had called 911, the
    larger man said yes. He asked Albritton what city they were in,
    and she told them they were in San Pedro. The larger boy
    appeared “very amped up, pumped up, very animated and excited
    and joyful.” The smaller and thinner boy remained silent. At
    some point during their interaction, Albritton called 911.
    A taxi driver received a call for a pickup on First Street in
    San Pedro at around 3:00 p.m. When he arrived, he could not
    immediately locate the callers, but he was flagged down by two
    young Hispanic men. The driver spoke to his passengers about
    high school and their t-shirt business. Per their request, he
    dropped them off in front of the Lakewood Mall. Security footage
    from the mall showed defendant and Berumen at the location
    from about 3:19 p.m. to 3:49 p.m. on April 23.
    B.    Law Enforcement Investigation and Waters’ Autopsy
    The Los Angeles County Fire Department responded to a
    call regarding a vehicle fire at approximately 2:17 p.m. on April
    23. When firefighters arrived at the scene, they found an SUV in
    flames. The SUV was parked on a basketball court surrounded
    by a chain link fence. After firefighters extinguished the fire,
    they discovered a body, later identified as Waters, in the rear
    cargo area of the vehicle and contacted the Sheriff’s Department.
    5
    Albritton did not identify defendant or Berumen in court.
    A law enforcement officer testified to defendant and Berumen’s
    height and weight, indicating Berumen was taller and heavier
    than defendant.
    6
    Los Angeles County Sheriff’s Department Lieutenant Scott
    Hoglund responded to the scene and took charge of the
    investigation. Viewing Waters’ body in the SUV, Hoglund saw
    his ankles were bound and he was wrapped in a comforter. An
    electric cord was wrapped tightly around his neck multiple times.
    As Waters’ body was being removed from the SUV, a
    supervising criminalist with the Los Angeles County Coroner’s
    Office and detectives on the scene removed items from the back of
    the vehicle. In addition to fire debris, they discovered clothing
    and a miniature wooden baseball bat. Some of the debris in the
    car had an odor of ignitable liquid, which later testing revealed to
    be gasoline. A deputy sheriff also found a sock, a matchbook, and
    a license plate lying on the ground. The license plate, which was
    discovered below the SUV’s rear bumper, indicated the vehicle
    belonged to Waters.
    A medical examiner at the Los Angeles County Coroner’s
    Office supervised the autopsy of Waters’ body. Waters had two
    black eyes, a broken nose, a laceration of the left nostril
    indicating blunt force to the area, swelling and bleeding of the
    lips with multiple lacerations, and extensive bruising on the
    forehead on both sides of the temple. The medical examiner
    concluded the injuries were caused by moderately severe blunt
    force, applied by multiple blows while Waters was still alive. The
    examiner further concluded the blunt force trauma could have
    been caused by a combination of hits by a small baseball bat and
    fists. There were no other injuries or bruising to Waters’
    stomach, back, or torso. There was no bruising on his arms,
    forearms, hands, nor were there any injuries consistent with
    defensive wounds. The ultimate cause of death was
    strangulation, and Waters was dead before the fire started. An
    7
    arson and bomb investigator for the Los Angeles Sheriff’s
    Department reviewed the case and concluded it was a “body
    dump,” meaning Waters had been killed elsewhere and
    transported to the scene, where the vehicle and body were
    torched with the use of gasoline and an open flame.
    Lieutenant Hoglund determined Berumen was a person of
    interest in the investigation after obtaining Waters’ cell phone
    data and speaking to a school resource officer at the high school
    that both Berumen and defendant attended. Lieutenant Hoglund
    sent a surveillance team to Berumen’s home. The next day,
    Berumen went to the Long Beach police station and asked to
    speak to investigators about Waters’ murder.
    Lieutenant Hoglund and Detective Adrian Garcia of the
    Long Beach Police Department interviewed Berumen with his
    mother present. Berumen did not have any visible injuries and
    did not report any pain or otherwise indicate he had been injured.
    After the interview, Lieutenant Hoglund obtained a warrant to
    search Berumen’s home. Law enforcement officers executing the
    search warrant discovered bloodstains in several areas of the
    garage, which appeared to be used as a living quarters. A blood
    sample collected at the scene was a probabilistic match to Waters’
    DNA profile.
    C.     Identification and Interview of Defendant
    During his investigation, Lieutenant Hoglund obtained
    surveillance footage from the Lakewood Mall. He took a still
    frame from the footage and a photograph from a Facebook post to
    the school resource officer at defendant’s high school. The
    resource officer identified defendant as one of the two young men
    in the photo. Lieutenant Hoglund then sent a surveillance team
    8
    to defendant’s home. They made contact with defendant and
    asked if he would speak with Lieutenant Hoglund. Defendant
    agreed.
    Lieutenant Hoglund and another detective interviewed
    defendant at the police station. Defendant initially said he had
    nothing to do with Waters’ death or the attack. Defendant did
    acknowledge he stopped by Berumen’s home the morning of the
    murder but he claimed he was only there a short while before
    heading to school, where he stayed until about 1:40 p.m. When
    asked why he had been at Lakewood Mall with Berumen the
    afternoon of the murder, defendant said he went to the mall after
    school and paid for certain items he purchased with $200
    Berumen had given him the day before.
    The interviewing officers told defendant they knew he and
    Berumen had been picked up by a taxi in San Pedro and dropped
    off at the mall, and asked defendant to start from the beginning
    and tell the truth. Defendant then related a significantly
    different sequence of events. Defendant said he was at
    Berumen’s house in the garage “listening to music[ and] watching
    videos” when Waters arrived. Berumen owed Waters money for
    some designs and did not have the money to pay him. At some
    point after Waters arrived, Berumen went into the house.
    Waters then “started going crazy” and “started trying to fight”
    defendant. Berumen returned to the garage and he and
    defendant “beat [Waters] up badly.”
    During the attack, defendant hit Waters with his fists.
    Defendant kept beating Waters after he went down because he
    did not want Waters to get back up and retaliate. Berumen put
    an extension cord around Waters’ neck because he did not want
    him to move. While they were cleaning the room after beating
    9
    Waters, defendant put a blanket over Waters’ face. Waters “was
    unconscious” when defendant did so, and defendant “had a
    feeling” Waters was dead.
    After beating Waters, defendant took a shower and put on
    some of Berumen’s clothes. Defendant and Berumen decided to
    burn Waters’ body because they did not know what to do, did not
    want to get caught, and thought they would not be found if they
    burned everything. Berumen and defendant picked up Waters,
    put him in the back of his SUV, and covered him with the
    blankets they used to clean the room. Defendant threw his soiled
    clothes in the car as well.
    Berumen drove defendant around San Pedro with Waters’
    body in the car. They stopped at a gas station to buy a gas can
    and gas, and they continued driving until they arrived at the
    basketball courts. They stopped because it looked like no one was
    there and put gas inside and outside the car. Defendant walked
    away and told Berumen to hurry up because cars were coming.
    Berumen set the car on fire and the two walked down the street.
    Defendant told the interviewing officers that he and
    Berumen encountered a woman while walking away from the
    scene. She said hello and they tried to “play it off,” asking if she
    had seen the fire. When asked if they had called 911, they said
    yes. Defendant and Berumen continued walking, and then
    Berumen called a cab and they went to the Lakewood mall.
    Berumen gave defendant $200 out of approximately $1000 he had
    taken from Waters. Defendant did not have any injuries other
    than partially skinned knuckles.
    10
    D.    The Defense Case
    Defendant testified at trial in his own defense; his
    testimony diverged greatly from the account he related to
    Lieutenant Hoglund.
    Defendant testified he was not required to attend school on
    the day of the murder because he was a senior and the school was
    conducting placement tests for other students. Defendant went
    to Berumen’s home to hang out until the school day was over. He
    did not know Waters was going to be at Berumen’s house until
    that morning. Defendant knew Waters from the Top Hat shop
    but did not know him well.
    When Waters arrived, everything seemed “regular,” and
    the three talked about music and watched music videos. At some
    point, Waters pulled out his wallet and started counting his
    money. Defendant testified Berumen then suddenly grabbed a
    bat and began hitting Waters in the face. Berumen kept hitting
    Waters after he hit the ground, hitting him until the bat snapped
    and Waters was unconscious. Defendant did not think Waters
    could defend himself because the first hit caught him off guard.
    When Berumen started hitting Waters, defendant got up and
    backed up. He turned away at some point because there was a
    lot of blood. Defendant “just got stuck” and did not know how to
    react.
    Berumen started barking orders at defendant, telling him
    to help clean up the blood. Defendant did as he was told and
    helped Berumen clean. It did not occur to defendant to leave, and
    defendant put a rag over Waters’ face while he was cleaning.
    Waters was unconscious and defendant thought he was dead. As
    defendant was cleaning, Berumen grabbed a cord and tied it
    around Waters’ neck. Berumen then went out to Waters’ SUV
    11
    and backed it into the garage. They loaded Waters’ body into the
    back and then each took a shower. Defendant borrowed clothes
    from Berumen and put his clothes on top of Waters’ body.
    Berumen got into the driver’s seat, defendant got into the
    passenger seat, and they drove off. Defendant did not direct
    Berumen to go anywhere. Berumen got on a freeway and drove
    for around thirty to forty-five minutes. They were not talking,
    but when Berumen asked defendant if he was alright, defendant
    said he was. Once they got off the freeway, they stopped at a gas
    station and defendant bought a gas can and some gas with money
    Berumen gave him because Berumen told him to do so.
    Defendant was following Berumen’s orders because he seemed to
    know what he was doing and defendant was scared.
    After defendant bought the gas, Berumen kept driving and
    they eventually arrived at the location with the basketball courts.
    Berumen started pouring gas on the engine. Defendant got out of
    the SUV, and Berumen started pouring gas inside the vehicle.
    By this time, defendant had reached his “breaking point” and told
    Berumen he had to leave. Berumen lit the car on fire as
    defendant was walking away.
    Defendant and Berumen encountered a woman while
    walking away from the burning vehicle. Berumen called a cab
    and they went to the Lakewood Mall so defendant could buy
    clothes similar to what he was wearing earlier that day (he did
    not want his father to realize he had gone somewhere other than
    school). After defendant bought the clothes, he called a friend
    who picked them up, dropped Berumen off at his house, and took
    defendant home.
    When confronted with the statement he had given to
    investigators at the police station, defendant testified he lied
    12
    during his police interview. He claimed he lied to the police
    because he panicked, explaining he knew he had helped Berumen
    with the body and the first thing he thought of was saying he had
    been defending himself. So defendant told the detective that
    Waters was trying to fight him and he and Berumen were both
    hitting Waters in order to show he was trying to defend himself.
    Defendant testified that, in truth, he never hit Waters, never
    came into physical contact with Waters before putting him in the
    truck, and never suffered any injury during the killing.
    Also testifying on defendant’s behalf was Danielle Sawyer,
    one of his high school teachers. Sawyer testified she taught
    defendant for his first three years of high school. She had no
    knowledge of defendant being involved in any fights at school and
    she believed he was a person who would avoid conflict if he could.
    E.     Jury Instructions
    Outside the presence of the jury, defense counsel asked the
    court to instruct the jury on the lesser related (not lesser
    included) offense of being an accessory after the fact based on
    defendant’s testimony that he assisted in the cleanup and cover-
    up but not the murder. The trial court declined, reasoning that
    the crime of being an accessory after the fact was not a lesser
    included offense and the jury could not come back with a finding
    on that ground. Rather, it would need to find defendant either
    guilty or not guilty of the charged crimes of murder and arson.
    Defendant requested the court give the accessory instruction as a
    separate count. The court again stated it could not give such an
    instruction because it was not a lesser included offense. The trial
    court asked the prosecution if it wanted to be heard on the issue,
    and the response was “no.”
    13
    As the court began instructing the jury on justifiable
    homicide in self-defense, defense counsel interrupted and asked
    to approach. Outside the hearing of the jury, defense counsel
    asked the court to withdraw the self-defense instructions.
    Counsel said the court might have a sua sponte duty to so
    instruct the jury but emphasized defendant had disclaimed
    having acted in self-defense during his trial testimony. The trial
    court declined to withdraw the instructions on self-defense
    principles, explaining: “[T]he reason I’m giving [the instruction]
    is that the jurors have some decisions to make. [¶] They can find
    that your client was truthful on the stand and not guilty of the
    murder. They can find that your client was not truthful on the
    stand, but they could believe the statement that he gave to the
    detective that there was self-defense. [¶] Or they could find [the
    prosecution’s] theory under a number of different theories. [¶] I
    don’t think that I can withhold these instructions. I think I have
    to give it because of the statement that was introduced that
    would allow the jurors to come back with a self-defense verdict.”
    The prosecutor agreed, stating he thought the instruction had to
    be given based on what was in evidence.
    The trial court gave the jury self-defense instructions as
    planned, including instructions on justifiable homicide and the
    limits of the right of self-defense. During the prosecution’s
    closing argument, the prosecutor argued defendant could not
    have been acting in self-defense because Waters did not have any
    wounds on his hands or any defensive wounds. During the
    defense closing argument, counsel made no reference to
    defendant having acted in self-defense. Instead, the defense
    argument was that Berumen alone perpetrated the killing,
    unbeknownst to defendant in advance, and all defendant did was
    14
    help Berumen cover it up—which was not enough to be guilty of
    the murder itself.
    F.    Verdict and Sentencing
    The jury found defendant guilty of murder in the first
    degree and arson of the property of another. The trial court
    sentenced defendant to twenty-five years to life in prison on the
    murder count. The court further imposed a high-term three-year
    prison term for the arson conviction, comprising a total aggregate
    sentence of twenty-eight years to life.
    II. DISCUSSION
    Defendant argues the trial court erred by instructing the
    jury on self-defense and by declining to give the jury instructions
    on the lesser-related offense of being an accessory after the fact.
    Although we can understand why the trial court thought it
    should instruct on self-defense in light of defendant’s police
    interview statements, it was error to give self-defense
    instructions that defendant did not request and that were
    contrary to his theory of the case at trial. The error, however,
    was harmless because the self-defense instructions the court gave
    did not contribute to the verdict obtained, particularly in light of
    (a) other instructions given by the trial court that warned the
    jury of the possibility that not all of the instructions were
    necessarily applicable, and (b) the absence of any reference to
    self-defense in the defense closing argument. As for defendant’s
    contention that the court should have instructed on the lesser
    related offense of being an accessory after the fact, the trial court
    did not err when it declined to give such an instruction in the
    15
    absence of the prosecution’s consent, as binding authority holds
    (People v. Birks (1998) 
    19 Cal.4th 108
     (Birks)).
    Defendant additionally argues he is now entitled to the
    ameliorative benefits of the recently enacted Senate Bill 1437.
    Senate Bill 1437 made statutory changes altering the definitions
    of malice and first and second degree murder. The legislation
    also established a procedure by which defendant and others who
    have sustained a murder conviction that arguably rests on a
    felony murder or a natural and probable consequences theory of
    liability may petition the sentencing court to hear additional
    evidence and, if appropriate, vacate the murder conviction if
    inconsistent with now-governing law. Notwithstanding the
    enactment of this procedure for retroactive relief, defendant
    argues he should be able to avail himself of the ameliorative
    benefits of Senate Bill 1437 on direct appeal. We hold to the
    contrary, concluding the Legislature’s enactment of the
    petitioning procedure evinces an intent to limit retroactive
    application of Senate Bill 1437. Defendant may seek Senate Bill
    1437 relief, but he must do so via the procedural avenue provided
    by the legislation, which will permit the trial court to take
    additional evidence that may bear on defendant’s liability for
    murder.
    A.      The Self-Defense Instruction
    “‘“It is settled that in criminal cases, even in the absence of
    a request, a trial court must instruct on general principles of law
    relevant to the issues raised by the evidence”’ and ‘“necessary for
    the jury’s understanding of the case.”’ [Citations.]” (People v.
    Brooks (2017) 
    3 Cal.5th 1
    , 73 (Brooks).) “‘That obligation has
    been held to include giving instructions on lesser included
    16
    offenses when the evidence raises a question as to whether all of
    the elements of the charged offense were present [citation], but
    not when there is no evidence that the offense was less than that
    charged. [Citations.] The obligation to instruct on lesser
    included offenses exists even when as a matter of trial tactics a
    defendant not only fails to request the instruction but expressly
    objects to its being given. [Citations.]’” (People v. Breverman
    (1998) 
    19 Cal.4th 142
    , 154-155 (Breverman).)
    Though a sua sponte instructional duty can also extend to
    defenses, the duty there is more circumscribed. (See, e.g., People
    v. Barton (1995) 
    12 Cal.4th 186
    , 197 [“requir[ing] trial courts to
    ferret out all defenses that might possibly be shown by the
    evidence, even when inconsistent with the defendant’s theory at
    trial, would not only place an undue burden on the trial courts
    but would also create a potential of prejudice to the defendant”];
    People v. Sedeno (1974) 
    10 Cal.3d 703
    , 715-716, overruled in part
    on other grounds.) A trial court only has a sua sponte duty to
    instruct on a defense “‘if it appears . . . the defendant is relying on
    such a defense, or if there is substantial evidence supportive of
    such a defense and the defense is not inconsistent with the
    defendant’s theory of the case.’ [Citations.]” (Brooks, supra, 3
    Cal.5th at p. 73; see also People v. Maury (2003) 
    30 Cal.4th 342
    ,
    424.) Where “the trial court believes ‘there is substantial
    evidence that would support a defense inconsistent with that
    advanced by a defendant, the court should ascertain from the
    defendant whether he wishes instructions on the alternative
    theory.’” (Breverman, 
    supra,
     19 Cal.4th at p. 157; see also People
    v. De La Plane (1979) 
    88 Cal.App.3d 223
    , 248-249.) “[A] trial
    court should not instruct the jury on an inconsistent affirmative
    17
    defense over the defendant’s objection.” (People v. Jo (2017) 
    15 Cal.App.5th 1128
    , 1168 (Jo).)
    The record demonstrates defendant was not relying on self-
    defense as a defense at trial. During his trial testimony,
    defendant expressly disavowed a self-defense theory, stating he
    lied to the detectives when he claimed he was acting in self-
    defense because he was “scared.” In his view, he was minimally
    involved in the murder—only as an accessory after the fact.
    The Attorney General sees the record differently,
    contending self-defense was not inconsistent with defendant’s
    theory of the case because it was “[defendant’s] own actions in
    telling inconsistent versions of what had happened [that]
    required him to acknowledge, if only inferentially, the existence
    of facts which he otherwise denied at trial . . . .” The source of the
    inconsistency at trial (between defendant’s statements to the
    police and his trial testimony) is immaterial, however; it is the
    existence of the inconsistency that is important. Defendant
    elected to defend at trial by disavowing his statement to
    investigators and by claiming he participated in the killing only
    by helping to cover it up after the fact. Once he made that
    election, the trial court had no sua sponte obligation to instruct
    on self-defense and should have refrained from doing so when
    defense counsel expressed (albeit rather belatedly) that he did
    not want such instructions. (Breverman, supra, 19 Cal.4th at p.
    157; see also Jo, supra, 15 Cal.App.5th at pp. 1168-1169.)
    Although we conclude the trial court erred in instructing on
    self-defense over defendant’s objection, this is not the end of our
    inquiry. We must also decide if the error was prejudicial. In
    doing so, we examine the entire record, including the facts,
    18
    instructions, and arguments of counsel. (People v. Guiton (1993)
    
    4 Cal.4th 1116
    , 1130.)
    The parties disagree as to what standard governs our
    prejudice inquiry. In reviewing cases involving a failure to
    instruct on a sua sponte defense, our high court has assumed the
    more rigorous Chapman v. California (1967) 
    386 U.S. 18
    (Chapman) harmless beyond a reasonable doubt standard
    applies. (E.g., People v. Salas (2006) 
    37 Cal.4th 967
    , 984.)
    Assuming that Chapman standard applies in this case, we
    conclude the inclusion of the instruction was harmless beyond a
    reasonable doubt.
    “‘“In determining whether error has been committed in
    giving or not giving jury instructions, we must consider the
    instructions as a whole [and] assume that the jurors are
    intelligent persons and capable of understanding and correlating
    all jury instructions which are given.’” [Citation.]” (Jo, supra, 15
    Cal.App.5th at p. 1172.) Here, the jury was instructed that “[t]he
    purpose of the court’s instructions is to provide [the jury] with the
    applicable law so that you may arrive at a just and lawful verdict.
    Whether some instructions apply will depend upon what you [the
    jury] find to be the facts.” Importantly, the jurors were also
    instructed to “[d]isregard any instruction which applies to facts
    determined by you not to exist” and “not [to] conclude that
    because an instruction has been given [the court is] expressing an
    opinion as to the facts.” Further, the jury was instructed that
    “[n]o person may be convicted of a criminal offense unless there is
    some proof of each element of the crime independent of any
    confession or admission made by him outside of this trial.” “We
    presume the jury understood and followed the court’s
    instructions.” (People v. Jackson (2016) 
    1 Cal.5th 269
    , 352.)
    19
    Any juror inclined to credit defendant’s trial testimony
    would have followed these instructions and simply disregarded
    the court’s self-defense instructions, particularly since (1) the
    defense did not rely on a self-defense theory in closing argument
    (indeed, the defense made no reference to self-defense at all), and
    (2) there was no evidence indicating Waters had sustained
    injuries to any part of his body other than his face and head prior
    to his death.
    Defendant, however, argues there are “legitimate reasons”
    for suspecting the jurors might have disregarded the letter of the
    instructions and condemned defendant’s behavior, even if they
    did not believe the evidence demonstrated defendant had
    committed murder. Essentially, defendant argues the jury would
    have found his behavior in assisting with the attempted cover-up
    so reprehensible that the jury would have convicted him of
    murder even if it believed he did not participate in Waters’
    murder. This is ungrounded speculation. We presume, and there
    is no record-based reason to conclude otherwise, that the jury
    followed CALJIC Nos. 2.90 and 8.10, the instructions requiring
    them to find each element of the charged crime beyond a
    reasonable doubt.
    The remainder of defendant’s efforts to establish prejudice
    from any error in giving self-defense instructions are equally
    unpersuasive. First, defendant argues the trial court’s
    instructions on self-defense undermined his testimony and
    defense at trial because they demonstrated the self-defense story
    he told the police could not have been intentionally falsified; as
    he argues it, the instructions revealed his self-defense story fell
    woefully short of establishing the legal elements of self-defense.
    The jury, however, did not need to believe defendant was a
    20
    criminal law scholar such that the story he told during his police
    interview would actually have been sufficient to make out a self-
    defense defense. To credit his trial testimony, the jury at most
    needed to conclude that defendant believed his story would
    establish a viable self-defense claim, and lied to the investigators
    because of that belief. Second, defendant argues the jury would
    have assumed defendant requested the self-defense instructions
    even though no version of the facts shown by the evidence could
    support it. Again, this is groundless speculation. Defendant did
    not argue for self-defense at any point during the trial, and he in
    fact disavowed his previous statement given to investigators.
    There was no reason for the jury to assume he was the one who
    asked the court to give self-defense instructions.
    B.     The Trial Court Did Not Err in Declining to Give a
    Lesser Related Offense Instruction
    “[A]ccessory after the fact is, as the court noted, a lesser
    related offense to murder, not a lesser included offense.” (People
    v. Mora and Rangel (2018) 
    5 Cal.5th 442
    , 486.) Our Supreme
    Court has held a trial court is not obliged to instruct a jury on
    lesser related offenses even if requested. (Birks, supra,19 Cal.4th
    at pp. 112-113.) Indeed, it is not allowed to do so unless both the
    prosecution and the defendant consent to the instruction. (Ibid.)
    Defendant seeks to avoid the binding force of Birks for
    three reasons, none of which is persuasive.
    First, defendant contends the prosecution impliedly
    consented to the requested instruction by not affirmatively
    objecting to or opposing the request for the instruction. Nothing
    in controlling case law, however, suggests some notion of implied
    consent is sufficient to instruct on a lesser related offense.
    21
    Rather, the discussion in Birks (which encompassed separation of
    powers principles) is correctly read to hold that an instruction on
    a nonincluded offense may be given only when the prosecution
    affirmatively agrees (Birks, 
    supra,
     19 Cal.4th at pp. 132-136),
    and here, there was no such agreement. In any event, the record
    does not support the view that the prosecution impliedly
    consented. After defense counsel requested the accessory after
    the fact instruction, the trial court stated it could not give the
    instruction because accessory after the fact was a lesser related,
    not a lesser included, offense. It was only at that point that the
    prosecution declined when asked if it wanted to be heard. With
    rejection of the request for an accessory instruction already a fait
    accompli, the prosecution’s silence is, if anything, an implied
    objection to such an instruction, not implied consent.
    Second, defendant contends Birks’s policy arguments are
    inapplicable in this case because the concern with fairness to the
    prosecution had effectively been addressed by the time the
    defense requested the instruction at issue. This argument fails
    because Birks did not condition the application of its holding to
    situations involving identical policy concerns.
    Third, defendant argues he had a federal constitutional
    right to instruction on his theory because refusal of the
    instruction implicated his rights to trial by jury and due process.
    To the contrary, both the United States Supreme Court and our
    Supreme Court have stated there is no constitutional obligation
    to instruct on a lesser related offense. (Hopkins v. Reeves (1998)
    
    524 U.S. 88
    , 97; Birks, 
    supra,
     19 Cal.4th at p. 124.)
    We decline defendant’s invitation to question Birks, which
    is controlling law, and we need not address the remainder of his
    arguments on this point.
    22
    [The remainder of the opinion is to be published.]
    C.    Senate Bill 1437
    On September 30, 2018, while defendant’s appeal was
    pending, the Governor signed Senate Bill 1437. The legislation,
    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, as well as by adding section 1170.95, which
    provides a procedure by which those convicted of murder can seek
    retroactive relief if the changes in law would affect their
    previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2-4.)
    Defendant requested the opportunity to submit supplemental
    briefing on the effect of Senate Bill 1437 and we received
    supplemental briefs from both sides.
    1.     Pertinent provisions
    Senate Bill 1437 was enacted 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).) Substantively, Senate Bill
    1437 accomplishes this by amending section 188, which defines
    malice, and section 189, which defines the degrees of murder, and
    as now amended, addresses felony murder liability. Senate Bill
    1437 also adds the aforementioned section 1170.95, which allows
    those “convicted of felony murder or murder under a natural and
    23
    probable consequences theory . . . [to] 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).)
    An offender may file a petition under section 1170.95 where
    all three of the following 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[;] [¶] [and] (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).)
    Pursuant to section 1170.95, subdivision (c), the petition
    shall include, among other things, a declaration by the petitioner
    stating he or she is eligible for relief based on all three
    aforementioned requirements of subdivision (a). A trial court
    that receives a petition under section 1170.95 “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.” (§ 1170.95, subd. (c).) If the petitioner has made such a
    showing, the trial court “shall issue an order to show cause.”
    (§ 1170.95, subd. (c).)
    The trial court must then hold a hearing “to determine
    whether to vacate the murder conviction and to recall the
    sentence and resentence the petitioner on any remaining counts
    in the same manner as if the petitioner had not previously been
    24
    sentenced, provided that the new sentence, if any, is not greater
    than the initial sentence.” (§ 1170.95, subd. (d)(1).) “The parties
    may waive a resentencing hearing and stipulate that the
    petitioner is eligible to have his or her murder conviction vacated
    and for resentencing. If there was a prior finding by a court or
    jury that the petitioner did not act with reckless indifference to
    human life or was not a major participant in the felony, the court
    shall vacate the petitioner’s conviction and resentence the
    petitioner.” (§ 1170.95, subd. (d)(2).) Significantly, if a hearing is
    held, “[t]he prosecutor and the petitioner may rely on the record
    of conviction or offer new or additional evidence to meet their
    respective burdens.” (§ 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).) “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.”
    (§ 1170.95, subd. (d)(3).)
    Section 1170.95, subdivision (f) states: “This section does
    not diminish or abrogate any rights or remedies otherwise
    available to the petitioner.”
    2.    Retroactivity of Senate Bill 1437
    The information filed against defendant charged him with
    murder under section 187, subdivision (a). Among the
    instructions given to the jury were instructions that allowed the
    jury to convict defendant of first degree murder pursuant to
    either a felony murder theory or the natural and probable
    consequences doctrine, as both were defined prior to the effective
    25
    date of Senate Bill 1437. Defendant was convicted of first degree
    murder.
    Defendant contends Senate Bill 1437 applies retroactively
    to him, he argues retroactive application of the amended law
    means the trial court advised the jury incorrectly on the elements
    of murder, and he asks us to reverse his conviction and remand
    for a new trial. Defendant relies on retroactivity principles
    espoused in In re Estrada (1965) 
    63 Cal.2d 740
     (Estrada) to
    assert he need not file a petition under section 1170.95 because
    his conviction is not yet final. The Attorney General, by contrast,
    argues defendant must proceed only by way of a petition
    pursuant to section 1170.95 and cannot circumvent that process
    by seeking retroactive relief in this appeal. The Attorney General
    has the better argument.
    Our Supreme Court recently summarized the principles
    articulated in Estrada, supra, 
    63 Cal.2d 740
    : “‘[A]n amendatory
    statute lessening punishment is presumed to apply in all cases
    not yet reduced to final judgment as of the amendatory statute’s
    effective date’ (People v. Floyd (2003) 
    31 Cal.4th 179
    , 184[ ], citing
    Estrada, at p. 744), unless the enacting body ‘clearly signals its
    intent to make the amendment prospective, by the inclusion of
    either an express saving clause or its equivalent’ (People v.
    Nasalga (1996) 
    12 Cal.4th 784
    , 793[ ]; see Estrada, at p. 747).
    This rule rests on an inference that when the Legislature has
    reduced the punishment for an offense, it has determined the
    ‘former penalty was too severe’ (Estrada, at p. 745) and therefore
    ‘must have intended that the new statute imposing the new
    lighter penalty . . . should apply to every case to which it
    constitutionally could apply’ (ibid.).” (People v. DeHoyos (2018) 
    4 Cal.5th 594
    , 600 (DeHoyos).)
    26
    Two recent California Supreme Court opinions in
    circumstances analogous to those here point the way to the
    proper resolution of whether Senate Bill 1437 should be given
    retroactive effect on direct appeal notwithstanding the bill’s
    enactment of the section 1170.95 petitioning procedure.
    In People v. Conley (2016) 
    63 Cal.4th 646
     (Conley), our
    Supreme Court considered whether Estrada’s holding compelled
    a conclusion that the Three Strikes Reform Act of 2012,
    commonly known as Proposition 36, applied retroactively to
    defendants whose judgments were not yet final. (Id. at pp. 655-
    656.) The defendant in Conley had been sentenced to an
    indeterminate term of 25 years to life under the Three Strikes
    law. Voters passed Proposition 36 while his appeal was pending
    (id. at pp. 654-655), and the initiative reduced the penalty for
    some third strike offenders whose third strike was not a serious
    or violent felony (id. at p. 652). Proposition 36 also created a
    post-conviction procedure that allowed prisoners who were
    already serving indeterminate life terms to seek resentencing for
    offenses that, if committed after the act’s effective date, would no
    longer support life terms. (§ 1170.126, subd. (b).)
    The defendant in Conley argued he was entitled to rely on
    Estrada’s retroactivity rule, which would enable him to seek
    Proposition 36 relief without complying with the initiative’s
    petition procedure. (Conley, supra, 63 Cal.4th at pp. 654-655.)
    That procedure, among other things, gives trial judges discretion
    to withhold Proposition 36 relief if a judge finds that resentencing
    the petitioner would pose an unreasonable risk of danger to
    public safety. (Ibid.; § 1170.126, subd. (f).)
    Our Supreme Court rejected defendant Conley’s argument
    and held the post-conviction procedure provided by section
    27
    1170.126 was the exclusive means by which those who had been
    sentenced before Proposition 36’s effective date could seek relief
    under the new law. (Conley, supra, 63 Cal.4th at pp. 661-662.)
    The Court acknowledged the continuing vitality of the Estrada
    rule in the unremarkable case of an ameliorative statute silent on
    whether it applies retroactively, but the Supreme Court
    concluded Conley was not entitled, on direct appeal, to invoke
    Proposition 36’s changes to prior law for three principal reasons.
    First, Proposition 36 was “not silent on the question of
    retroactivity” but instead “expressly addresse[d] the question in
    section 1170.126, the sole purpose of which is to extend the
    benefits of [Proposition 36] retroactively.” (Conley, supra, 63
    Cal.4th at p. 657.) In doing so, Proposition 36 did not distinguish
    between persons serving final sentences and those serving
    nonfinal sentences. (Ibid.)
    Second, Proposition 36 made resentencing contingent on a
    court’s evaluation of a defendant’s dangerousness. Conferring an
    automatic entitlement to resentencing on defendants whose cases
    were still pending on direct appeal would not allow courts to
    conduct that inquiry, and the court found no basis to hold the
    electorate intended “for courts to bypass the public safety inquiry
    altogether in the case of defendants serving sentences that are
    not yet final.” (Conley, supra, 63 Cal.4th at pp. 658-659.)
    Third, the changes in law worked by Proposition 36 not
    only reduced previously prescribed criminal penalties but also
    established “a new set of disqualifying factors that preclude a
    third strike defendant from receiving a second strike sentence,”
    factors that the prosecution was required to plead and prove.
    (Conley, supra, 63 Cal.4th at p. 659.) Because Proposition 36 did
    not address the complexities involved in applying the pleading-
    28
    and-proof requirements to previously sentenced defendants, the
    court concluded the electorate did not contemplate those
    provisions would apply to previously sentenced defendants. (Id.
    at pp. 660-661.) Rather, they intended such defendants to seek
    relief under section 1170.126, which did not contain pleading-
    and-proof requirements.
    Our Supreme Court reached a similar result in DeHoyos,
    supra, 
    4 Cal.5th 594
    , which presented the question of whether
    Proposition 47 (“the Safe Neighborhoods and Schools Act”)
    applied retroactively to nonfinal cases on direct appeal.
    “Proposition 47 redefined several common theft- and drug-related
    felonies as either misdemeanors or felonies” and enacted a
    petitioning procedure similar to that enacted as part of
    Proposition 36. (Id. at p. 597.) The DeHoyos court noted
    Proposition 47, like Proposition 36, was “an ameliorative criminal
    law measure that is ‘not silent on the question of retroactivity,’
    but instead contain[ed] a detailed set of provisions designed to
    extend the statute’s benefits retroactively.” (Id. at p. 603.) Those
    provisions included a recall of sentence petitioning mechanism
    for individuals “serving a sentence” for a covered offense as of
    Proposition 47’s effective date. (§ 1170.18, subd. (a).)
    As it did in Conley when analyzing Proposition 36, the
    DeHoyos court found it significant that Proposition 47’s recall of
    sentence petitioning mechanism drew “no express distinction
    between persons serving final sentences and those serving
    nonfinal sentences, instead entitling both categories of prisoners
    to petition courts for recall of sentence” and “expressly ma[king]
    resentencing dependent on a court’s assessment of the likelihood
    that a defendant’s early release will pose a risk to public safety,
    undermining the idea that voters ‘categorically determined that
    29
    “imposition of a lesser punishment” will in all cases “sufficiently
    serve the public interest.”’ (Conley, [supra, 63 Cal.4th] at p. 658;
    see § 1170.18, subd. (b).)” (DeHoyos, supra, 4 Cal.5th at p. 603.)
    The DeHoyos court acknowledged Proposition 47 differed from
    Proposition 36 in that it did not “create new sentencing factors
    that the prosecution must ‘plead[ ] and prove[ ]’ ([ ]§ 1170.12,
    subd. (c)(2)(C)) to preclude a grant of leniency.” (Ibid.) The Court
    explained, however, that other indicia of legislative intent,
    including Proposition 47’s broad statement of purpose, revealed
    the initiative’s petitioning procedure was meant to be the
    exclusive avenue for retroactive relief for all previously sentenced
    defendants, whether or not their sentences were final. (Ibid.)
    The analytical framework animating the decisions in
    Conley and DeHoyos is equally applicable here. Like Propositions
    36 and 47, Senate Bill 1437 is not silent on the question of
    retroactivity. Rather, it provides retroactivity rules in section
    1170.95. The petitioning procedure specified in that section
    applies to persons who have been convicted of felony murder or
    murder under a natural and probable consequences theory. It
    creates a special mechanism that allows those persons to file a
    petition in the sentencing court seeking vacatur of their
    conviction and resentencing. In doing so, section 1170.95 does
    not distinguish between persons whose sentences are final and
    those whose sentences are not. That the Legislature specifically
    created this mechanism, which facially applies to both final and
    nonfinal convictions, is a significant indication Senate Bill 1437
    should not be applied retroactively to nonfinal convictions on
    direct appeal.
    The remainder of the procedure outlined in section 1170.95
    underscores the Legislative intent to require those who seek
    30
    retroactive relief to proceed by way of that statutorily specified
    procedure. The statute requires a petitioner to submit a
    declaration stating he or she is eligible for relief based on the
    criteria in section 1170.95, subdivision (a). (§ 1170.95, subd.
    (b)(1)(A).) Where the prosecution does not stipulate to vacating
    the conviction and resentencing the petitioner, it has the
    opportunity to present new and additional evidence to
    demonstrate the petitioner is not entitled to resentencing.
    (§ 1170.95, subd. (d)(3).) The petitioner, too, has the opportunity
    to present new or additional evidence on his or her behalf.
    (§ 1170.95, subd. (d)(3).) Providing the parties with the
    opportunity to go beyond the original record in the petition
    process, a step unavailable on direct appeal, is strong evidence
    the Legislature intended for persons seeking the ameliorative
    benefits of Senate Bill 1437 to proceed via the petitioning
    procedure. The provision permitting submission of additional
    evidence also means Senate Bill 1437 does not categorically
    provide a lesser punishment must apply in all cases, and it also
    means defendants convicted under the old law are not necessarily
    entitled to new trials. This, too, indicates the Legislature
    intended convicted persons to proceed via section 1170.95’s
    resentencing process rather than avail themselves of Senate Bill
    1437’s ameliorative benefits on direct appeal.
    Defendant resists this conclusion, arguing Conley and
    DeHoyos are distinguishable because the petitioning procedures
    enacted by Propositions 36 and 47 conditioned sentencing relief
    on a trial court finding that the defendant would not pose an
    unreasonable risk of danger if released, and section 1170.95
    contains no such requirement. While defendant is correct that
    section 1170.95 does not require a dangerousness inquiry, neither
    31
    Conley nor DeHoyos holds that inquiry was the indispensable
    statutory feature on which the result in those cases turned. To
    the contrary, Conley notes “[o]ur cases do not ‘dictate to
    legislative drafters the forms in which laws must be written’ to
    express an intent to modify or limit the retroactive effect of an
    ameliorative change; rather, they require ‘that the Legislature
    demonstrate its intention with sufficient clarity that a reviewing
    court can discern and effectuate it.’” (Conley, supra, 63 Cal.4th at
    pp. 656-657; see also People v. Superior Court (Lara) (2018) 
    4 Cal.5th 299
    , 312 [explaining Conley held Estrada’s inference of
    retroactivity was inapplicable because “the legislation contained
    its own retroactivity provision”].) Accordingly, we look not for
    specific procedural conditions, but for indicia of the Legislature’s
    intent. Here, as we have already detailed, the other indications
    the Legislature intended to restrict individuals who have already
    been convicted to the petitioning procedure outlined in section
    1170.95 are considerable.
    Defendant additionally argues his right to seek reversal of
    his conviction on direct appeal is supported by other cases in
    which defendants were allowed to argue a conviction must be
    reversed on direct appeal due to a legislative change in the
    elements of a criminal offense. Both cases defendant cites in
    support of this argument involved changes to the substantive
    elements of the defendants’ crimes before their sentences were
    final (People v. Ramos (2016) 
    244 Cal.App.4th 99
    ; People v.
    Collins (1978) 
    21 Cal.3d 208
    ), but neither involved a new or
    amended law that “modif[ied], limit[ed], or entirely forb[ade] the
    retroactive application of ameliorative criminal law
    amendments.” (Conley, supra, 63 Cal.4th at p. 656.) They are
    thus inapposite here.
    32
    Defendant further contends section 1170.95, subdivision (f)
    supports his argument for direct appeal retroactivity because it
    states: “This section does not diminish or abrogate any rights or
    remedies otherwise available to the petitioner.” The court in
    Conley rejected a similar argument concerning an analogous
    provision included in the text of Proposition 36, reasoning that
    provision “contain[ed] no indication that automatic
    resentencing—as opposed to, for example, habeas corpus relief—
    ranks among the ‘rights’ the electorate sought to preserve.”
    (Conley, supra, 63 Cal.4th at pp. 661-662.) We reach the same
    conclusion here, where there is no indication that reversal of a
    defendant’s sentence on direct appeal without compliance with
    the procedures outlined in section 1170.95 was among the
    “rights” the Legislature sought to preserve in enacting Senate
    Bill 1437.
    We add a final note, albeit on a point not raised by
    defendant. Although we hold the section 1170.95 petition
    procedure is the avenue by which defendants with nonfinal
    sentences of the type specified in section 1170.95, subdivision (a)
    must pursue relief, we are cognizant of the possibility that some
    defendants may be able to present a particularly strong case for
    relief under the changes worked by Senate Bill 1437 and wish to
    seek that relief immediately rather than await the full
    exhaustion of their rights to directly appeal their conviction. Our
    holding today does not foreclose such immediate relief in an
    appropriate case.
    Once a notice of appeal is filed, jurisdiction vests in the
    appellate court until the appeal is decided on the merits and a
    remittitur issues. (People v. Awad (2015) 
    238 Cal.App.4th 215
    ,
    220 (Awad); see also People v. Scarbrough (2015) 
    240 Cal.App.4th 33
    916, 923.) But a defendant retains the option of seeking to stay
    his or her pending appeal to pursue relief under Senate Bill 1437
    in the trial court. A Court of Appeal presented with such a
    request and convinced of its merit can order the pending appeal
    stayed with a limited remand to the trial court for the sole
    purpose of permitting the trial court to rule on a petition under
    section 1170.95. (See, e.g., Awad, supra, at p. 222.) In those
    cases where a stay is granted and a section 1170.95 petition is
    successful, the direct appeal may either be fully or partially moot.
    If the petition is unsuccessful, a defendant may seek to augment
    the appellate record, as necessary, to proceed with any issues
    that remain for decision.
    In light of our conclusion that defendant must file a section
    1170.95 petition in the trial court to seek retroactive relief under
    Senate Bill 1437, we express no view on whether he should be
    granted Senate Bill 1437 relief. That will be a question for the
    trial court in the first instance, if a section 1170.95 petition is
    filed.
    34
    DISPOSITION
    The judgment is affirmed.
    CERTIFIED FOR PARTIAL PUBLICATION
    BAKER, Acting P. J.
    We concur:
    KIM, J.
    JASKOL, J.*
    *
    Judge of the Los Angeles Superior Court, assigned by the
    Chief Justice pursuant to article VI, section 6 of the California
    Constitution.
    35