People v. Vargas CA2/4 ( 2022 )

Filed 6/27/22 P. v. Vargas CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B309389
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA336486)
v.
GEOVANNY ANTONIO VARGAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Renee F. Korn, Judge. Reversed and
remanded with directions.
Deborah L. Hawkins, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Peggy Z. Huang,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________________________
INTRODUCTION
Appellant Geovanny Antonio Vargas appeals from the
superior court’s denial of his petition under Penal Code
section 1170.95 to vacate his first degree murder conviction.1
The evidence at trial established appellant was present
when his codefendant fatally shot a rival gang member in
broad daylight, and after the two men fled together,
appellant attempted to hide the gun. The prosecution
alleged that before the shooting, appellant and his
codefendant were informed rival gang members were
crossing out their gang’s graffiti, and appellant agreed to
retaliate by committing either murder or assault. The jury
was instructed that if appellant intended to aid and abet
only an assault, he could be guilty of murder under a natural
and probable consequences theory. The prosecutor relied on
this theory (among others) during closing arguments,
initially suggesting that the natural and probable
consequences theory established appellant’s guilt of first
degree murder, before stating in rebuttal that appellant
1
Undesignated statutory references are to the Penal Code.
2
could be guilty of first degree murder only under a
premeditation theory. The instruction on the latter theory
stated the defendant premeditated if he decided to kill before
“committing the act that caused death” (as only the actual
killer could have done). The jury convicted appellant and his
codefendant of first degree murder. We affirmed the
judgment, without addressing whether the jury might have
relied on the natural and probable consequences theory.
(People v. Vargas (Nov. 20, 2012, No. B234354) 2012
Cal.App.Unpub. LEXIS 8485 (Vargas I).)
After the enactment of Senate Bill No. 1437 (2017-2018
Reg. Sess.) (SB 1437), which eliminated murder liability
under the natural and probable consequences theory,
appellant filed a petition to vacate his conviction under
section 1170.95. At his request, the superior court appointed
counsel for him. The prosecution opposed the petition, and
appellant’s appointed counsel made no argument in reply.
The court held a hearing, during which both parties’ counsel
argued the court should deny the petition without issuing an
order to show cause. Appellant made a Marsden motion for
substitution of counsel, which the court heard and denied.2
The court proceeded to deny the petition, concluding
appellant had failed to make a prima facie showing of
eligibility for relief because the record of conviction
established the jury rejected the natural and probable
2
People v. Marsden (1970) 2 Cal.3d 118.
3
consequences theory in convicting him of first degree
murder.
On appeal, appellant contends the court erred in
denying his petition while, as a result of the court’s denial of
his Marsden motion, he lacked the assistance of counsel. He
argues his appointed counsel was ineffective in failing to
argue the jury might have convicted him under the natural
and probable consequences theory. The Attorney General
disagrees, arguing (1) the court properly denied the petition
without issuing an order to show cause, because the jury
instructions established the jury rejected the natural and
probable consequences theory in convicting appellant of first
degree murder; and (2) the court’s denial of appellant’s
Marsden motion was proper and, in any event, harmless.
We conclude the court erred in denying appellant’s
petition without issuing an order to show cause. The jury
instructions and closing arguments were ambiguous
regarding whether appellant could be convicted of first
degree murder under the natural and probable consequences
theory. Because the record of conviction did not refute, as a
matter of law, appellant’s allegation that he was convicted
under that theory, the court was required at the prima facie
stage to accept his allegation as true. Accordingly, we
reverse the order summarily denying the petition, and
remand to the superior court with directions to issue an
order to show cause and proceed in accordance with section
1170.95. We need not address the parties’ dispute
concerning appellant’s Marsden motion.
4
BACKGROUND
A. Underlying Judgment
The People charged appellant and his codefendant,
Lester Manuel Galdamez, with the murder of Gerardo
Canenguez, with associated gang and firearm allegations.3
(Vargas I, supra, 2012 Cal.App.Unpub. LEXIS 8485, at
*1-*2.)
1. Trial Evidence
In 2008, appellant and codefendant Galdamez belonged
to a gang called the St. Andrews Boys 13 (St. Andrews).
(Vargas I, supra, 2012 Cal.App.Unpub. LEXIS 8485, at *2.)
The murder victim, Canenguez, belonged to a rival gang
called the Mara Salvatrucha 13 (M.S.). (Id. at *2.) Los
Angeles Police Department Officer Lazaro Ortega, a gang
expert, testified that in 2008, the St. Andrews and M.S.
gangs were at war. (Id. at *2-*3, *13.) Officer Ortega
further testified that the St. Andrews gang’s primary
activities included actual and attempted murder, as well as
assaults with deadly weapons and with fists. (Id. at *2-*3,
*13.)
An eyewitness to the shooting testified that on the
morning of February 14, 2008, he saw Canenguez on a
bicycle near the intersection of Clinton Street and Wilton
Place in Los Angeles (in St. Andrews territory). (Vargas I,
3
We grant the Attorney General’s request for judicial notice
of the record on direct appeal.
5
supra, 2012 Cal.App.Unpub. LEXIS 8485, at *3.) Shortly
thereafter, the eyewitness heard a gunshot, and saw two
men -- later identified as appellant and Galdamez --
standing across the intersection from Canenguez and a
companion. (Id. at *3-*4.) Galdamez fired three shots at
Canenguez, who fell off his bicycle. (Id. at *4.) As Galdamez
and appellant retreated from the intersection, Galdamez
exchanged gunfire with Canenguez’s companion. (Id. at *4.)
Another witness heard the gunshots, saw appellant and
Galdamez flee, and followed the men to appellant’s
apartment building before calling 911. (Id. at *5.)
Responding officers arrested appellant at his building. (Id.
at *6.) During an authorized search of appellant’s residence,
the officers found a semiautomatic handgun, which was
determined to have fired the bullet casings found at the
scene of the shooting, and to bear DNA matching Galdamez.4
(Id. at *6-*7.)
Canenguez was transported to a hospital, where he
died from a gunshot wound to the head. (Vargas I, supra,
2012 Cal.App.Unpub. LEXIS 8485, at *5-*6.) On his person,
4
Galdamez hid before the police arrived -- first in a
dumpster, then in the trunk of a car driven by Liliana Yoon, who
was dating another St. Andrews member. (Vargas I, supra, 2012
Cal.App.Unpub. LEXIS 8485, at *2, *5, *8.) Yoon testified she
overheard Galdamez tell her boyfriend he “caught” two M.S.
members, and use the word “blast.” (Id. at *5.) Galdamez was
arrested in February 2009, after investigating officers
interviewed Yoon. (Id. at *7.)
6
medical personnel found a pocketknife and a can of black
spray paint. (Id. at *6.) Police officers noticed that near the
scene of the shooting, St. Andrews graffiti had been freshly
crossed out with black spray paint. (Id. at *6.) Officer
Ortega, the gang expert, opined that if St. Andrews members
learned their graffiti was being crossed out by a rival M.S.
member, they were likely to confront the rival with “extreme
violence,” carrying an expectation that someone “could” die
and a gun in their possession “m[ight]” have to be used. (Id.
at *3, *18-*19.)
Upon appellant’s arrest, he was taken to a police
station and placed in a room with fellow St. Andrews
member Javier Plascencia, who had been found near
appellant’s residence shortly after the shooting. (Vargas I,
supra, 2012 Cal.App.Unpub. LEXIS 8485, at *6.) A video
recording of appellant and Plascencia’s conversation was
played for the jury. (Id. at *6.) Appellant referred to a
phone call from a neighbor (without disclosing the call’s
subject matter) and said, “We fucking seen ‘em riding bikes
. . . .” (Id. at *7.) He told Plascencia a man was shot in the
head, and identified Galdamez as the shooter. (Id. at *7.)
Testifying in their defense, appellant and Galdamez
claimed they were attacked by one or two gunmen while
walking to Galdamez’s friend’s house, and Galdamez fired
his gun in self-defense. (Vargas I, supra, 2012
Cal.App.Unpub. LEXIS 8485, at *8.) Appellant denied
knowing Galdamez had a gun, or that a rival gang member
was crossing out St. Andrews graffiti. (Id. at *8.) He
7
acknowledged that if St. Andrews members knew their
graffiti was being crossed out by a rival M.S. member, they
would probably try to kill “or hurt” the rival.
2. Instructions and Arguments
The trial court (Judge Anne H. Egerton) instructed the
jury: “Unless I tell you otherwise, all instructions apply to
each defendant.” The court further instructed the jury (per
CALCRIM No. 400): “A person is guilty of the crime whether
he committed it personally or aided and abetted the
perpetrator who committed it.”5 The court delivered
instructions on two theories of aiding and abetting, viz., a
direct aiding and abetting theory (CALCRIM No. 401) and a
natural and probable consequences theory (CALCRIM No.
403). The natural and probable consequences instruction
provided, in relevant part: “To prove that the defendant is
guilty of murder, the People must prove that: [¶] 1. The
defendant is guilty of assault with a firearm or simple
assault; [¶] 2. During the commission of assault with a
firearm or simple assault[,] a coparticipant in that assault
with a firearm or simple assault committed the crime of
murder; [¶] AND [¶] 3. Under all of the circumstances, a
reasonable person in the defendant’s position would have
known that the commission of the murder was a natural and
probable consequence of the commission of the assault with
5
During closing arguments, the prosecutor stated an aider
and abettor is “equally” (or “just as”) guilty as the perpetrator.
8
a firearm or simple assault.” The instruction did not address
the degree of murder.
The court further instructed the jury on express-malice
and implied-malice murder (CALCRIM No. 520), and on
premeditated first degree murder (CALCRIM No. 521). The
premeditation instruction provided, in relevant part: “If you
decide that the defendant has committed murder, you must
decide whether it is murder of the first or second degree. [¶]
The defendant is guilty of first degree murder if the People
have proved that he acted willfully, deliberately, and with
premeditation. The defendant acted willfully if he intended
to kill. The defendant acted deliberately if he carefully
weighed the considerations for and against his choice and,
knowing the consequences, decided to kill. The defendant
acted with premeditation if he decided to kill before
committing the act that caused death.”
The prosecutor argued Galdamez was guilty of first
degree murder because in shooting the victim, he acted on a
premeditated and deliberate intent to kill. The prosecutor
argued appellant was guilty of murder under any of three
theories: (1) he acted with implied malice; (2) he directly
aided and abetted the murder; or (3) he aided and abetted an
assault, the natural and probable consequence of which was
murder. Although the prosecutor indicated the implied-
malice theory was limited to second degree murder, he did
not initially suggest the natural and probable consequences
theory was so limited. On the contrary, he suggested
otherwise, arguing appellant was guilty of first degree
9
murder because he aided and abetted a confrontation while
“knowing the consequences of confronting rival gang
members” and “know[ing] that this could escalate into a
shooting.”
Appellant’s counsel argued he was not guilty of any
crime, because the prosecution had failed to prove he knew a
rival gang member was crossing out St. Andrews graffiti,
6
much less intended to retaliate. In rebuttal, the prosecutor
maintained appellant was guilty of murder because he
agreed with Galdamez to confront the victim in retaliation
for the victim’s crossing out St. Andrews graffiti. For the
first time, the prosecutor stated that the natural and
probable consequences theory was limited to second degree
murder, and that appellant was guilty of first degree murder
only if the jury found he shared Galdamez’s premeditated
and deliberate intent to kill. The prosecutor did not address
his earlier, inconsistent argument that appellant was guilty
of first degree murder because he aided and abetted a
confrontation he knew “could escalate” into a shooting.
3. Judgment and Appeal
The jury convicted appellant and Galdamez of first
degree murder, and found the gang and firearm allegations
true. (Vargas I, supra, 2012 Cal.App.Unpub. LEXIS 8485, at
6
Galdamez’s counsel conceded Galdamez fatally shot the
victim, but argued the killing was justified or excused under
theories of self-defense and provocation.
10
*2.) The verdicts did not specify the theory or theories on
which the jury relied. Each defendant was sentenced to a
total term of 50 years to life. (Ibid.)
Appellant appealed, challenging the judgment on
various grounds immaterial to the instant appeal. (Vargas I,
supra, 2012 Cal.App.Unpub. LEXIS 8485, at *1.) We
rejected each challenge and affirmed, without addressing
whether the jury might have relied on the natural and
probable consequences theory. (Id. at *9-*34.)
B. Section 1170.95 Petition
In March 2019, appellant, acting pro se, filed a petition
to vacate his murder conviction under section 1170.95,
alleging he was convicted under the natural and probable
consequences theory, but could not now be convicted of
murder because of SB 1437’s changes to the law. At
appellant’s request, the superior court (Judge Renee F.
Korn) appointed counsel to represent him. In June 2020,
following proceedings regarding the constitutionality of
section 1170.95, the prosecution filed an opposition
challenging appellant’s eligibility for relief under the statute.
The prosecution argued appellant had failed to make a
prima facie showing because in light of the jury instructions
and the trial prosecutor’s rebuttal argument, the jury
necessarily rejected the natural and probable consequences
theory in convicting appellant of first degree murder.
Appellant’s counsel filed a reply brief, which made no
argument in support of relief. Appellant himself then
11
submitted a letter to the court, arguing he might have been
convicted under the natural and probable consequences
theory because (1) the instructions did not limit the theory to
second degree murder, and (2) although the prosecutor
stated in rebuttal that the theory was so limited, the jury
might have disregarded this statement as inconsistent with
its instructions.7 Appellant also declared that at the time of
the shooting, he did not know Galdamez had a gun, much
less aid and abet Galdamez in shooting the victim.
In November 2020, the court held a hearing to
determine whether appellant had made a prima facie
showing. The court announced that although it believed the
jury found appellant acted with intent to kill in convicting
him of first degree murder, rendering him ineligible for
relief, the court intended to issue an order to show cause,
because the jury had been presented with the natural and
probable consequences theory. Appellant’s counsel argued
the court should instead deny his client’s petition,
principally because, in counsel’s view, the trial evidence
failed to support the natural and probable consequences
theory.8 After hearing appellant’s counsel’s arguments, the
7
The trial court instructed the jury: “If you believe that the
attorneys’ comments on the law conflict with my instructions, you
must follow my instructions.”
8
In our view of the trial record, it appears the jury
reasonably could have concluded the evidence proved appellant
intended to aid and abet an assault (the natural and probable
(Fn. is continued on the next page.)
12
court indicated it had reconsidered its intent to issue an
order to show cause. The court then heard argument from
the prosecutor, and stated that both attorneys’ arguments
supported the conclusion appellant had not made a prima
facie showing. The court asked appellant whether he
wanted to testify.
In response, appellant made a request for new counsel,
which the court construed as a Marsden motion. The court
held a Marsden hearing, during which it allowed appellant
to explain why he was dissatisfied with his counsel, and to
reply to his counsel’s responses. Concluding that appellant’s
counsel had adequately represented him, the court denied
his Marsden motion.
When the court reconvened the prima facie hearing,
both parties submitted. At the conclusion of the hearing,
and in a subsequent memorandum of decision, the court
consequence of which was murder), but failed to prove beyond a
reasonable doubt he intended to kill. (See People v. Gonzales and
Soliz (2011) 52 Cal.4th 254, 295-297 [jury reasonably could have
convicted defendant of murder under natural and probable
consequences theory, based on evidence he “at the least” intended
to aid and abet assault with deadly weapon, where defendant and
shooter saw victims fitting profile of rival gang members while
driving by gas station, and urged driver to return to station so
they could confront victims with firearms, in retaliation for
killing of fellow gang member].) We need not decide the issue, as
the Attorney General does not argue that the trial evidence failed
to support the natural and probable consequences theory, or that
such a failure of evidence would establish the jury rejected the
theory.
13
denied appellant’s petition without issuing an order to show
cause, concluding he had failed to make a prima facie
showing of eligibility for relief. The court reasoned: “After
review of the court file, the jury verdicts, the jury
instructions, the facts provided in the court of appeal
decision, and the written and oral arguments, [the court
concludes] Petitioner was a direct aider and abettor to the
murder and as such, is ineligible under P.C. § 1170.95.
. . . Petitioner’s conviction of first degree premeditated
murder indicates the jury’s determination that Petitioner
was a direct aider and abettor. Further, the jury’s verdict
illustrates the rejection [of the claim] that the murder was in
self-defense. Quite simply, the facts do not support that
Petitioner was convicted . . . under a natural and probable
consequences theory.” Appellant timely appealed.
DISCUSSION
A. Section 1170.95
SB 1437 eliminated murder liability under the natural
and probable consequences doctrine. (See § 188, subd. (a)(3);
Stats. 2018, ch. 1015, §§ 1, subd. (f), 2.) SB 1437 also
enacted section 1170.95, which permits a defendant who was
convicted of murder under the natural and probable
consequences doctrine, but who could not be convicted of
murder because of SB 1437’s changes to the law, to petition
the sentencing court to vacate the conviction and resentence
the petitioner on any remaining counts. (§ 1170.95, subd.
(a); Stats. 2018, ch. 1015, § 4.) After ascertaining that
14
a section 1170.95 petition contains certain required
information, the court must appoint counsel for the
petitioner (where requested), allow the parties to file briefs,
and determine whether the petitioner has made a prima
facie showing of entitlement to relief. (§ 1170.95,
subd. (c); People v. Lewis (2021) 11 Cal.5th 952, 960-
968 (Lewis).)
“[T]he ‘prima facie bar was intentionally and correctly
set very low.’” (Lewis, supra, 11 Cal.5th at 972.) “Like the
analogous prima facie inquiry in habeas corpus proceedings,
‘“the court takes petitioner’s factual allegations as true and
makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
allegations were proved. If so, the court must issue an order
to show cause.”’” (Id. at 971, quoting People v. Drayton
(2020) 47 Cal.App.5th 965, 978 (Drayton).) “In reviewing
any part of the record of conviction at this preliminary
juncture, a trial court should not engage in ‘factfinding
involving the weighing of evidence or the exercise of
discretion.’” (Lewis, at 972, quoting Drayton, at 980.) This
prohibition against factfinding is subject to a limited
exception: “‘if the record, including the court’s own
documents, “contain[s] facts refuting the allegations made in
the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.’”” (Lewis,
at 971, quoting Drayton, at 979.) “However, this authority to
make [factual] determinations without conducting an
evidentiary hearing . . . is limited to readily ascertainable
15
facts from the record (such as the crime of conviction) . . . .”
(Drayton, at 980.) “Only where the record of conviction
contains facts conclusively refuting the allegations in the
petition,” thereby establishing the petitioner’s ineligibility
for resentencing “as a matter of law,” may the court refrain
from issuing an order to show cause. (People v. Flores (2022)
76 Cal.App.5th 974, 991-992.)
If the court finds the petitioner has made a prima facie
showing, it must issue an order to show cause and hold an
evidentiary hearing. (§ 1170.95, subds. (c)-(d).) “At the
hearing to determine whether the petitioner is entitled to
relief, the burden of proof shall be on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is
guilty of murder . . . under California law as amended by
[SB 1437].” (Id., § 1170.95, subd. (d)(3).) If the prosecution
fails to meet this burden, the court must vacate the murder
conviction and resentence the petitioner on any remaining
counts. (Ibid.)
B. Analysis
We conclude the superior court erred in denying
appellant’s petition under section 1170.95 without issuing an
order to show cause. It was undisputed that appellant was
not the actual killer. He alleged he was convicted under the
natural and probable consequences theory, and he could not
be convicted under any other, still-valid theory. If these
allegations are true, appellant is entitled to resentencing.
(See § 1170.95, subd. (a)(3).) The court was required to
16
accept appellant’s allegations as true, and to issue an order
to show cause, unless readily ascertainable facts from the
record of conviction refuted his allegations as a matter of
law. (See Lewis, supra, 11 Cal.5th at 974; Drayton, supra,
47 Cal.App.5th at 980.) As explained below, we conclude the
record of conviction did not do so.
The jury instructions did not refute, as a matter of law,
appellant’s allegation he was convicted of first degree
murder under the natural and probable consequences
theory. The instruction on the natural and probable
consequences theory (CALCRIM No. 403) was given as a
basis for finding appellant guilty of murder, but it did not
address the degrees of murder. Absent such delineation, the
jury might have believed the degree of murder was
necessarily equal to the degree of murder committed by the
perpetrator, viz., Galdamez. Indeed, the prosecutor stated
that an aider and abettor was “equally” guilty as the
perpetrator, and CALCRIM No. 400 suggested as much, by
stating a principal was guilty of the crime whether he
perpetrated it or aided and abetted the perpetrator who
committed it. Nothing in the instruction on premeditated
first degree murder (CALCRIM No. 521) unambiguously
directed the jury to determine appellant’s personal mental
state as an aider and abettor. On the contrary, the
instruction provided, “The defendant acted with
premeditation if he decided to kill before committing the act
that caused death.” (Italics added.) Because Galdamez, not
appellant, was undisputedly the defendant who committed
17
the act that caused death, the jury might have believed the
instruction required it to determine only Galdamez’s mental
state. (See In re Loza (2018) 27 Cal.App.5th 797, 804 (Loza)
[habeas petitioner might have been convicted of first degree
murder under natural and probable consequences theory,
because “when the court instructed the jury that it had to
find that the ‘defendant’ premeditated and deliberated, the
jury could have (and likely did) understand the word
‘defendant’ to mean . . . the [codefendant] shooter”].)9
We acknowledge that the instructions were arguably
clarified by the prosecutor’s statement, in rebuttal, that
appellant was guilty of first degree murder only if the jury
found he shared Galdamez’s premeditated and deliberate
intent to kill. In his initial summation, however, the
9
We reject the Attorney General’s attempt to distinguish
Loza on the ground that there, certain language in the
premeditation instruction directed the jury to determine the
mental state of “the slayer.” (Loza, supra, 27 Cal.App.5th at 804,
italics omitted.) We discern no meaningful distinction between
“the slayer” and “[t]he defendant . . . [who] committ[ed] the act
that caused death.” Further, we are unpersuaded by the
Attorney General’s observation that here, unlike in Loza, the jury
was instructed that all instructions applied to each defendant
unless otherwise provided. This instruction did not compel the
jury to apply all references to “the defendant” to both defendants;
on the contrary, the natural and probable consequences
instruction logically could not have been applied to Galdamez,
the actual killer, in stating the People were required to prove the
elements of this aiding and abetting theory in order to prove “the
defendant” guilty of murder.
18
prosecutor argued appellant was guilty of first degree
murder merely because he aided and abetted a confrontation
he knew “could escalate” into a shooting. Considered as a
whole, the jury instructions and closing arguments were
ambiguous regarding whether appellant could be convicted
of first degree murder under the natural and probable
consequences theory. Thus, in determining that the jury
necessarily rejected the natural and probable consequences
theory in convicting appellant of first degree murder, the
superior court engaged in “‘factfinding involving the
weighing of evidence,’” which was impermissible in
reviewing “any part of the record of conviction” at the prima
facie stage. (Lewis, supra, 11 Cal.5th at 972, quoting
Drayton, supra, 47 Cal.App.5th at 980.)
We are not persuaded by the Attorney General’s
reliance on People v. Stevenson (2018) 25 Cal.App.5th 974(Stevenson), abrogated on another ground by People v.
Canizales (2019) 7 Cal.5th 591. There, the Court of Appeal
rejected the defendants’ contention, on direct appeal, that
they were convicted of first degree murder under a natural
and probable consequences theory, reasoning that the sole
instruction on first degree murder was a modified version of
CALCRIM No. 521 (similar but not identical to the version of
CALCRIM No. 521 delivered here), under which the jury was
required to find premeditation and deliberation on the part
of each defendant. (Stevenson, at 981-984.) Although the
instruction stated “‘[a] defendant’” acted with premeditation
if he decided to kill before “‘completing the acts that caused
19
death,’” the court did not expressly consider whether this
language might have led the jury to determine only the
mental state of the perpetrator. (Id. at 982, 984.) Assuming,
arguendo, Stevenson was correctly decided, it is inapposite.
Here, unlike in Stevenson, the prosecutor paraphrased
CALCRIM No. 400 in a manner indicating that appellant’s
guilt as an aider and abettor was equal to Galdamez’s as the
perpetrator, and in his initial summation, the prosecutor
suggested that appellant was guilty of first degree murder
under the natural and probable consequences theory.
Moreover, Stevenson did not concern a petition under section
1170.95, much less the statute’s requirement to accept the
petitioner’s allegations as true at the prima facie stage.
Thus, Stevenson does not persuade us that the record of
conviction refuted appellant’s allegations as a matter of law.
(See Drayton, supra, 47 Cal.App.5th at 981 [trial court erred
in denying petition at prima facie stage, where no facts in
trial record refuted, “as a matter of law,” petitioner’s
allegation he was convicted under felony murder theory]; cf.
Loza, supra, 27 Cal.App.5th at 806 [even assuming it was
“‘highly unlikely’” habeas petitioner was convicted of first
degree murder under natural and probable consequences
theory, invalid instruction on that theory was not harmless
beyond a reasonable doubt (italics omitted)].)
In sum, we conclude nothing in the record of conviction
prevented appellant from clearing the “‘very low’” bar set by
the Legislature at the prima facie stage. (Lewis, supra, 11
Cal.5th at 972.) Accordingly, we reverse the order denying
20
appellant’s petition at that stage, and remand to the
superior court with directions to issue an order to show
cause and proceed in accordance with section 1170.95.
21
DISPOSITION
The order denying appellant’s petition for resentencing
under section 1170.95 is reversed. The matter is remanded
to the superior court with directions to issue an order to
show cause and proceed in accordance with section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
22