People v. Guardado CA2/5 ( 2020 )

Filed 12/21/20 P. v. Guardado CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B303152
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA386978)
v.
JUAN CARLOS GUARDADO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Fred N. Wapner, Judge. Affirmed.
James M. Crawford, 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, Zee Rodriguez and Paul S. Theis, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant’s petition for resentencing under Penal Code
section 1170.95 was summarily denied.1 As defendant was not
entitled to relief as a matter of law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Underlying Conviction
Defendant was convicted of murder for his part in a gang
shooting. The victim was sitting in his parked car in rival gang
territory. Defendant and his co-defendant, Danny Navarrete,
walked up the victim’s car. Navarrete shot the victim in the
head. Defendant subsequently told a fellow gang member that he
and Navarrete had caught a rival unprepared and to lay low until
everything calmed down.
Defendant and Navarrete were charged with one count of
murder (§ 187), firearm enhancements (§ 12022.53, subds. (b)-
(d)), and a gang enhancement (§ 186.22, subd. (b)(1)(C).) It was
alleged that Navarrete was the actual shooter; the firearm
enhancements alleged as to defendant were vicarious. The
defendants were convicted as charged. The murder was found to
be in the first degree. Defendant was sentenced to 50 years to
life in prison, comprised of 25 years to life for the murder plus 25
years to life for the firearm enhancement.
On appeal, defendant’s conviction was affirmed. (People v.
Navarrete (May 8, 2014, B247600) [nonpub. opn.].) Among other
things, defendant argued that there was insufficient evidence
that he had aided and abetted the murder.2 A prior panel of this
1 All undesignated statutory references are to the Penal
Code.
2 In arguing there was insufficient evidence he had aided
and abetted, defendant specifically “point[ed] out that the jury
2
division rejected that contention, finding sufficient evidence that
defendant shared Navarrete’s intent to kill.
2. Defendant’s Section 1170.95 Petition
On February 22, 2019, defendant filed a form petition for
resentencing under section 1170.95. He requested the
appointment of counsel.
Counsel was appointed, the prosecution filed a response,
and defendant filed a reply.
The court held a hearing and denied the petition, stating,
“This is a pretty easy decision. This wasn’t a felony murder. It
wasn’t a natural and probable consequences.”
Defendant filed a timely notice of appeal.
DISCUSSION
Senate Bill No. 1437 (SB 1437) invalidated the natural and
probable consequences doctrine as it relates to murder, and
narrowed liability for felony murder. (People v. Verdugo (2020)
44 Cal. App. 5th 320, 323 (Verdugo) review granted Mar. 18, 2020.)
It also enacted section 1170.95, providing a means by which a
defendant convicted of murder under prior authority could seek
resentencing under the new version of the law.
Once a section 1170.95 petition is filed, there follows a
multi-step process by which the court first determines whether
the petition is facially complete, and, if so, whether the petitioner
has made a prima facie showing that he falls within the
provisions of statutory eligibility. (People v. Torres (2020)
found appellant Navarrete personally used a weapon in the
commission of the murder but found as to appellant Guardado
only that a principal was armed in the commission of the murder.
He concludes, reasonably, that the jury convicted him as an aider
and abettor.”
3
46 Cal. App. 5th 1168, 1177 (Torres) review granted June 24,
2020.) The materials which the court can review at this stage
include the prior appellate opinion (People v. Lee (2020)
49 Cal. App. 5th 254, 263, review granted July 15, 2020; People v.
Lewis (2020) 43 Cal. App. 5th 1128, 1136, fn. 7, review granted
Mar. 18, 2020) and the jury instructions given in the defendant’s
trial. (People v. Edwards (2020) 48 Cal. App. 5th 666, 674.) If the
court determines the petitioner is ineligible for relief as a matter
of law, the petition is denied at this first stage; if not, the court
proceeds to the next step. (Torres, at pp. 1177-1178.)
At the first stage, the court’s inquiry is only whether the
defendant is ineligible for relief under section 1170.95 as a
matter of law. (Verdugo, supra, 44 Cal.App.5th at p. 329.) If, for
example, the court’s review of the record of conviction necessarily
establishes the defendant was convicted on a ground that
remains valid after SB 1437’s amendment of murder, the petition
may be denied at this stage. (Id. at pp. 329-330.) But if the court
“cannot rule out the possibility that the jury relied on” a theory
invalidated by SB 1437, there is no prima facie ineligibility.
(People v. Offley (2020) 48 Cal. App. 5th 588, 599.)
Here, although the trial court accepted briefing and held a
hearing, the court determined that defendant was ineligible for
relief as a matter of law. This was indisputably correct. At
defendant’s request, we have augmented the record on appeal to
include the jury instructions given at defendant’s trial. The
instructions establish that the jury was not instructed on felony
murder or on a natural and probable consequences theory of
vicarious liability.3 As the appellate court observed in
3 In his reply brief on appeal, defendant argues at length
that there is insufficient evidence that he was a direct aider and
4
defendant’s original appeal, “the jury convicted [defendant] as an
aider and abettor.”
DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
abettor. This argument fails to address the fact that the jury was
not instructed on any other basis for aider and abettor liability.
It also appears to be an attempt to relitigate the sufficiency of the
evidence issue resolved against defendant on his initial appeal.
5