People v. Salazar CA2/1 ( 2023 )

Filed 3/21/23 P. v. Salazar CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B321773
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA036172)
v.
EDGAR RAFAEL SALAZAR,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hector E. Gutierrez, Judge. Reversed.
Benjamin Owens, 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, Assistant
Attorney General, Idan Ivri and Blake Armstrong, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________
MEMORANDUM OPINION
As the parties agree and we concur in the relief requested
in this appeal, we decide this matter by memorandum
disposition. (Cal. Stds. Jud. Admin., § 8.1.) In 1996, a jury
convicted defendant and appellant Edgar Rafael Salazar of first
degree murder and two counts of attempted murder, finding true
the allegation that defendant personally used a firearm in the
commission of the offenses. In aggregate, the court sentenced
defendant to life imprisonment with the possibility of parole. In
1998, this court affirmed the judgment of conviction. (People v.
Salazar (Mar. 3, 1998, B109627 [nonpub. opn.].)
In 2021, defendant filed a petition for resentencing
pursuant to Penal Code section 1172.6.1 After appointing counsel
to represent defendant and considering briefing submitted by the
parties, the trial court denied the petition without issuing an
order to show cause pursuant to section 1172.6, subdivision (c).
The court found defendant had not made a prima facie showing
that he was entitled to relief because the record of conviction
(including the appellate opinion affirming defendant’s conviction,
on which the court relied)2 showed the only theory upon which
1 All unspecified statutory references are to the Penal Code.
The defendant filed his resentencing petition under section
1170.95, which the Legislature renumbered as section 1172.6,
with no change in the text of the statute (Stats. 2022, ch. 58, § 10,
eff. June 30, 2022).
2 Section 1172.6, subdivision (d)(3) states the court may
“consider the procedural history of the case recited in any prior
appellate opinion.” While we express no opinion on the issue, we
note that at least one court has held this statutory language
means courts should not rely on the factual summaries contained
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the jury could have found defendant guilty was that he was the
actual shooter (as to the attempted murders) and the actual killer
(as to the murder), and acted with express malice.
This was prejudicial error, because the record of conviction
does not establish as a matter of law that defendant was
ineligible for relief under section 1172.6. The prosecution’s
primary theory at trial as to all three counts was that defendant
personally fired the gun shots at issue. If proven beyond a
reasonable doubt, that would render defendant ineligible for
relief under section 1172.6 on the murder charge as the actual
killer, and on the attempted murder charges as the direct
perpetrator with an intent to kill.
But that was not the only theory argued and upon which
the jury was instructed. Section 1172.6 affords the possibility of
relief to a defendant convicted of murder or attempted murder
based on a natural and probable consequences theory. (§ 1172.6,
subd. (a)(1).) As the Attorney General concedes, the jury
instructions in defendant’s trial included a natural and probable
consequences instruction as to all counts, with the target offense
being discharge of a firearm in a grossly negligent manner. In
response to defendant’s closing argument that someone else
present with defendant was the shooter, the prosecution
reiterated in rebuttal its contention that defendant was the
actual shooter. But it also argued in the alternative that if the
jury concluded someone else fired the shots, defendant was still
guilty on all three counts under the natural and probable
in such opinions as the trial court did here. (People v. Clements
(2022) 75 Cal.App.5th 276, 292.)
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consequences doctrine because defendant supplied the gun to the
shooter.
We therefore agree with the parties that the record does
not demonstrate that defendant was ineligible for resentencing as
a matter of law, and that defendant met his prima facia burden
under section 1172.6 when seeking resentencing. The trial court
was thus required to issue an order to show cause pursuant to
section 1172.6, subdivision (c) and to hold an evidentiary hearing
pursuant to subdivision (d) to determine if the prosecution has
shown “beyond a reasonable doubt[ ] that [defendant] is guilty of
murder or attempted murder under California law as amended
by the changes to Section 188 or 189 made effective January 1,
2019.” (Id., subd. (d)(3).) That did not occur here, requiring
reversal.
DISPOSITION
The order denying the resentencing petition is reversed,
and the matter is remanded. The trial court is directed to issue
an order to show cause under subdivision (c) of section 1172.6.
The trial court shall then hold an evidentiary hearing under
section 1172.6, subdivision (d)(1) and (3), unless the parties waive
the hearing and stipulate to defendant’s eligibility for
resentencing (§ 1172.6, subd. (d)(2)).
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
CHANEY, J. BENDIX, Acting P. J.
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