People v. Pulido CA6 ( 2020 )

Filed 12/8/20 P. v. Pulido CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047751
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS130724)
v.
EDMUNDO PULIDO,
Defendant and Appellant.
I. INTRODUCTION
In 2014, defendant pleaded guilty to two counts of second degree murder (Pen.
Code, § 187, subd. (a); counts 1-2)1 arising from separate incidents. Defendant also
admitted the allegations that a principal was armed with a firearm during the commission
of count 1 (§ 12022, subd. (a)), he personally used a firearm during the commission of
count 2 (§ 12022.5, subd. (a)), and he committed both offenses for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1), (5)). Pursuant to a negotiated disposition,
defendant was sentenced to an aggregate term of 35 years to life.
In 2019, defendant filed a petition for resentencing pursuant to section 1170.95,
which allows individuals convicted of felony murder or murder under the natural and
probable consequences doctrine to petition the superior court to vacate the conviction
1
All further statutory references are to the Penal Code.
under recent changes to the law. After briefing by the parties, the superior court denied
the petition, finding that defendant failed to make a prima facie showing of entitlement to
relief.
Defendant contends the superior court erred when it summarily denied his petition
as it pertained to count 1 because he stated a prima facie case of entitlement to relief.
Defendant asserts that the court should have issued an order to show cause regarding
count 1 and held a hearing pursuant to section 1170.95, subdivision (d). The Attorney
General agrees.
For reasons that we will explain, we conclude that defendant stated a prima facie
case of entitlement to relief on count 1. We will therefore reverse the superior court’s
order denying defendant’s section 1170.95 petition for failure to make a prima face case
for relief and remand the matter for the issuance of an order to show cause and an
evidentiary hearing on count 1.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background2
At approximately 6:00 p.m. on March 23, 2010, police were dispatched to a drive-
by shooting near Laurel Pocket Park in Salinas. Azahel C., a six-year-old boy, had been
shot in the head and killed while inside his home. The wound was consistent with a
nine-millimeter bullet.
A witness observed a gold Honda traveling away from the scene after shots rang
out. Video surveillance footage from a nearby store showed a person take off running as
he “intersected” with the Honda and the Honda accelerated. A person could be seen
2
The facts pertaining to count 1 are taken from the preliminary hearing transcript
that provided the factual basis for defendant’s plea. We do not summarize the facts
pertaining to count 2 because the preliminary hearing transcript that provided the factual
basis for defendant’s plea to count 2 is not part of the record on appeal, presumably
because it was not attached as an exhibit to the parties’ briefing below.
2
hanging out of the Honda’s window and looking back toward the park. Four nine-
millimeter shell casings were found at the scene.
A former Norteño criminal street gang member identified as “CI2” testified that
when he was at a cousin’s house the day after the incident, Bernardo Camacho, also
known as “Nightmare,” asked whether people had heard about the shooting. Camacho
then said, “It was me,” and that he “fucked up” and was “the one that shot.” CI2 testified
that Camacho stated that he and “Eddie Boy” saw a group of Sureños as they were
driving by the park. Camacho “told ‘em to drive back around the block and if it was
clear he was going to shoot at them.” They drove back around and Camacho started
shooting.
CI2 testified that he “could tell by [Camacho’s] demeanor that he wasn’t lying.”
CI2 stated, “That’s not something you want to take blame for” based on “[t]he victim
and . . . the way the shooting happened,” explaining that “a drive-by-shooting . . . you
can’t really do as a Norteño.” CI2 told Camacho that he could either turn himself in or
go to Mexico. The next time CI2 saw Camacho was in Mexico.
A person identified as “CI1” told a district attorney investigator that when he saw
a news story about the shooting, he thought “it looked like [defendant’s] vehicle.”
Defendant was CI1’s cousin. CI1 told the investigator that at some point when CI1 and
defendant were housed together in jail, defendant stated that Camacho was the shooter
and he was the driver. After the shooting, defendant went to San Luis Obispo and San
Diego to hide. He sold the Honda in Mexico.
During a recorded jail conversation between CI1 and defendant, defendant stated
that he and Camacho went to “Tito B[.]’s pad,” Camacho gave Tito B. “the strap,” and
Tito B. got rid of it. “Strap” is a common term for gun. Defendant also said that the car
was “gone.”
The lead detective in the case interviewed a group of minors associated with a
Sureño criminal street gang. One of the minors told the detective that he believed he was
3
the target of the shooting. The detective observed Sureño gang graffiti in the park. The
detective also viewed the surveillance footage from the market. The footage showed an
individual start to run as a vehicle drove by. The detective observed what may have been
the same vehicle drive by the scene 47 seconds before the shooting.
The detective interviewed a witness in San Luis Obispo identified as “TL1.” TL1
told the detective that when defendant visited him in April or May 2010, defendant stated
that he was with someone “who did a shooting” and defendant believed someone had
been shot. Defendant later learned from a news story that a child had been killed. At
another point, defendant asked TL1 if he could stay with him in San Luis Obispo because
the police were after him.
The parties stipulated that the Norteños are a criminal street gang. A gang expert
testified that Norteños are rivals of Sureños. The expert opined that defendant and
Camacho were active participants in a Norteño criminal street gang and that the drive-by
shooting was gang-related. The expert testified that committing a murder benefits the
gang because it creates fear in the community and the rival gang.
B. Procedural History
1. Charges, Pleas, and Sentence
In 2013, defendant was charged by information with two counts of special
circumstances murder (§§ 187, subd. (a), 190.2; counts 1-2) and two counts of street
terrorism (§ 186.22, subd. (a); counts 3-4). As to count 1, it was alleged that the murder
was perpetrated by means of discharging a firearm from a motor vehicle with the intent to
inflict death (§ 190.2, subd. (a)(21)) and that defendant intentionally killed the victim
while an active participant in a criminal street gang to further the activities of the gang
(§ 190.2, subd. (a)(22)). As to count 2, it was alleged that defendant was convicted of
multiple murders (§ 190.2, subd. (a)(3)) and that defendant intentionally killed the victim
while an active participant in a criminal street gang to further the activities of the gang. It
4
was also alleged that defendant committed counts 1 and 2 for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1), (5).)
At the 2014 plea hearing, the prosecution amended the information to strike the
premeditation language from counts 1 and 2 and allege that a principal was armed with a
firearm during the commission of count 1 (§ 12022, subd. (a)) and defendant personally
used a firearm in the commission of count 2 (§ 12022.5, subd. (a)). Defendant pleaded
guilty to two counts of second degree murder as amended. Defendant admitted the
firearm allegations and that he committed the offenses for the benefit of a criminal street
gang. In his written waiver of rights, defendant stated that the preliminary hearings
provided the factual basis for his pleas.3 Regarding count 1, defendant stated in his
waiver of rights, “[T]he factual basis is contained in the preliminary hearing
transcript, . . . which describes the death of Azahel [C.] by which I did aid and abet by
driving a car from which the fatal shot was fired.” Regarding count 2, defendant stated
that the preliminary hearing transcript “describes the death of Efrain Vargas in a gang
shooting which I did commit and personally fired the firearm.”
Pursuant to a negotiated disposition, defendant was sentenced to an aggregate term
of 35 years to life.
2. Section 1170.95 Proceedings
In August 2019, defendant filed a petition for resentencing pursuant to
section 1170.95. The petition consisted of a three-page preprinted form. Defendant
checked boxes on the form indicating that “[a] complaint, information, or indictment was
filed against [him] that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine”; he “pled
guilty . . . to 1st or 2nd degree murder in lieu of going to trial because [he] believed [he]
could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony
3
Counts 1 and 2 were initially charged separately.
5
murder rule or the natural and probable consequences doctrine”; and he “could not now
be convicted of 1st or 2nd degree murder because of changes made to . . . § § 188 and
189, effective January 1, 2019.” In addition, defendant checked boxes stating that he
“was not the actual killer”; he “did not, with the intent to kill, aid, abet, counsel,
command, induce, solicit, request, or assist the actual killer in the commission of murder
in the first degree”; and he “was not a major participant in the felony or . . . did not act
with reckless indifference to human life during the course of the crime or felony.”
Defendant also requested counsel.
The superior court appointed counsel to represent defendant. In written opposition
to the petition, the prosecution declined to address the petition as it pertained to count 2
because defendant “stipulated he was the shooter, and admitted the personal use of a
firearm.” Regarding count 1, the prosecution asserted that defendant was not entitled to
relief because he was prosecuted as an aider and abettor and was not convicted of felony
murder or murder under the natural and probable consequences doctrine. Alternatively,
the prosecution argued that defendant was a major participant in the murder who acted
with reckless indifference to human life. In addition, the prosecution contended that
Senate Bill No. 1437, by which section 1170.95 was enacted, was unconstitutional.
Defendant replied to the prosecution’s briefing, arguing that through his plea to
count 1, he “agreed . . . that his act of a[i]ding and abetting was: he drove a car and
someone shot out of the car. This is a natural and probable consequences murder.”
Defendant argued that count 1 “[was] not a felony murder case” because under the
merger doctrine articulated in People v. Chun (2009) 45 Cal. 4th 1172, 1200 (Chun),
“when the underlying felony is assaultive in nature, such as a violation of section 246 or
246.3, the felony merges with the homicide and cannot be the basis of a felony murder
instruction. In relation to [c]ount 1, the discharge of the firearm is an assault and the
assault merges with the homicide and cannot be the basis for a felony murder.”
Defendant also asserted that the preliminary hearing evidence demonstrated that he
6
shared Camacho’s intent “simply to scare rival gang members,” not to kill them, based on
Camacho’s statements to CI2 that Camacho “ ‘told ‘em to drive back around the block
and if it was clear he was going to shoot at them’ ” and that he “ ‘fucked up,’ ” and CI2’s
testimony that drive-by shootings were unacceptable to Norteños. Regarding count 2,
defendant argued that his plea did not establish that he was the actual killer or “had the
specific intent to kill as now required of an aider and abettor to a homicide.” Defendant
also contended that Senate Bill No. 1437 was constitutional.
The superior court denied the petition for failure to state a prima facie case for
relief. The court stated that it had reviewed the petition, briefing, exhibits, preliminary
hearing transcripts, the plea waiver form, and the parties’ stipulations, and had conducted
its own review of readily available information in the court’s file.
The court addressed count 2 first, determining that “[t]he facts in this case are
sufficient to establish that [defendant] was the actual killer of . . . the victim identified as
Efrain Vargas.” The court summarized the facts in the preliminary hearing transcript and
found that “[b]eyond that, [defendant] stipulated that he was the shooter and admitted the
personal use of a firearm.”
Regarding count 1, the court determined that defendant could still be convicted of
murder following the change in the law because the evidence established that defendant
“with the intent to kill aided, abetted, counseled or commanded or induced or solicited or
requested or assisted the actual killer, [who] was identified as a gang member with the
moniker Nightmare.” The court found that defendant was prosecuted as an aider and
abettor, which he admitted in his waiver of rights form, and that he was not convicted of
felony murder or murder under the natural and probable consequences doctrine. The
court determined that the “evidence . . . supports the People’s contention that [defendant]
was fully aware of what his codefendant intended to do and . . . shared in his
codefendant’s intent to kill rival gang members.” The court continued, “[Defendant]
knew the area where the shooting occurred was frequented by rival S[u]reños gang
7
members. [¶] . . . [Defendant] drove around the block at least twice, as was observed on
the video surveillance footage. [Defendant] took the gun that was used to kill Azahel
C[.] to a fellow gang member’s home after the shooting, and later he either sold or got rid
of the car which was used to hunt down a rival gang member and used to carry out the
drive-by shooting that resulted in Azahel C[.]’s early demise. [¶] [Defendant’s] intent
may also be gleaned from the existence of a gang rivalry that was testified to by the
expert with respect to criminal street gangs.” The court alternatively found that “[t]he
evidence . . . also establishes that the defendant was a major participant” in Azahel C.’s
murder who “acted in reckless indifference [to] human life.”4
III. DISCUSSION
Defendant contends the superior court erred when it determined he failed to state a
prima facie case for section 1170.95 relief on count 1.5 Defendant argues that the court
erroneously determined that he was not prosecuted under the felony murder rule or the
natural and probable consequences doctrine and found that “[t]he evidence in this case
supports the People’s contention that [defendant] was fully aware of what his co-
defendant intended to do and . . . shared in his co-defendant’s intent to kill rival gang
members.” The Attorney General concedes that defendant made a prima facie case for
relief on count 1 and that an order to show cause should have issued.
A. Statutory Framework
The Legislature enacted Senate Bill No. 1437 to “amend the felony murder rule
and the natural and probable consequences doctrine . . . 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 of the underlying felony who acted with reckless indifference
4
The superior court did not address the prosecution’s argument that Senate Bill
No. 1437 was unconstitutional.
5
Defendant does not challenge the superior court’s ruling that he failed to state a
prima facie case for relief on count 2.
8
to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill amended sections 188 and
189, which pertain to the definition of malice and the degrees of murder. (Stats. 2018,
ch. 1015, §§ 2-3.)
The Legislature amended section 188 by adding subdivision (a)(3), which
provides: “Except as stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a crime.” (Stats. 2018,
ch. 1015, § 2; § 188, subd. (a)(3).) Section 189, subdivision (e), now limits liability for
murder to a person who was either the actual killer or, though not the actual killer, acted
“with intent to kill” and “aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer” in the commission of first degree murder, or was
“a major participant in the underlying felony and acted with reckless indifference to
human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e).)
In addition to the amendments to sections 188 and 189, Senate Bill No. 1437
added section 1170.95, which allows “[a] person convicted of felony murder or murder
under the natural and probable consequences theory” to petition the sentencing court to
vacate the murder conviction and be resentenced on any remaining counts. (Stats. 2018,
ch. 1015, § 4; § 1170.95, subd. (a).) All of the following conditions must apply to
warrant section 1170.95 relief: “(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).)
9
Subdivision (c) of section 1170.95 “prescribes a two-step process for the court to
determine if an order to show cause should issue: ‘The court 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. If the petitioner has requested counsel, the court shall
appoint counsel to represent the petitioner. The prosecutor shall file and serve a
response . . . and the petitioner may file and serve a reply . . . . If the petitioner makes a
prima facie showing that he or she is entitled to relief, the court shall issue an order to
show cause.’ ” (People v. Verdugo (2020) 44 Cal. App. 5th 320, 327 (Verdugo), review
granted Mar. 18, 2020, S260493.)
“Once the order to show cause issues, the court must hold a hearing to determine
whether to vacate the murder conviction and to recall the sentence and resentence the
petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).) If the prosecutor does not
stipulate to vacating the conviction and resentencing the petitioner (§ 1170.95,
subd. (d)(2)), the People have the opportunity to present new and additional evidence at
the hearing to demonstrate the petitioner is not entitled to resentencing. (§ 1170.95,
subd. (d)(3).) The petitioner also has the opportunity to present new or additional
evidence in support of the resentencing request. (Ibid.)” (Verdugo, supra, 44
Cal.App.5th at p. 327, review granted Mar. 18, 2020, S260493.) The burden of proof at
the hearing is on the prosecution and the prosecution must prove beyond a reasonable
doubt that the defendant is ineligible for resentencing. (§ 1170.95, subd. (d)(3).)
B. Standard of Review
Whether the superior court properly denied defendant’s section 1170.95 petition
for failure to state a prima facie case for relief involves multiple standards of review. We
review the court’s factual findings for substantial evidence and the court’s application of
those facts to section 1170.95 de novo. (See People v. Drayton (2020) 47 Cal. App. 5th
965, 981 (Drayton).)
10
C. Analysis
In Drayton, this court considered how a superior court should “assess whether a
petitioner has made a prima facie showing of entitlement to relief under section 1170.95,
subdivision (c), such that [the court] must issue an order to show cause.” (Drayton,
supra, 47 Cal.App.5th at p. 968.) This court held that the superior court “should assume
all facts stated in the section 1170.95 petition are true” and that the court “should not
evaluate the credibility of the petition’s assertions, but it need not credit factual assertions
that are untrue as a matter of law.” (Id. at p. 980; but see People v. Garcia (2020) 100
Cal. App. 5th 100, 106 [holding that “where . . . the record of conviction contains
substantial evidence based on which a reasonable trier of fact could find the petitioner
guilty of murder beyond a reasonable doubt under current law . . . , the petitioner has
failed to carry his burden of making a prima facie showing that he could not presently be
convicted of murder” and “[t]he petition must be denied even though the assertions in the
petition, if true, would satisfy the statutory criteria for relief”].) This court further held
that the superior court’s authority to make credibility determinations at the prima facie
stage “is limited to readily ascertainable facts from the record . . . , rather than factfinding
involving the weighing of evidence or the exercise of discretion.” (Drayton, supra, at
p. 980.) As the Attorney General concedes, Drayton is dispositive here.
The district attorney in Drayton contested the defendant’s allegation that he was
not a major participant in the underlying robbery who acted with reckless indifference to
human life. (Drayton, supra, 47 Cal.App.5th at p. 981.) The district attorney relied on
preliminary hearing testimony to argue that the defendant went to the victims’ home,
participated in the robbery, and pointed a gun at one of the victims, rendering the
defendant a major participant. (Id. at pp. 970, 981.) The district attorney asserted that
the defendant’s reckless indifference to human life was established by the fact that he
brought his gun to the crime scene and did not assist the murder victim after he had been
shot. (Id. at p. 970.)
11
The defendant in Drayton, on the other hand, contended that he had stated a prima
facie case that he did not act with reckless indifference to human life because he never
fired his gun and he tried to stop the robbery but was afraid because a coperpetrator
pointed a gun at him. (Drayton, supra, 47 Cal.App.5th at p. 971.) The defendant
asserted that he had armed himself for his own protection based on a prior incident, not to
perpetrate the robbery; he did not injure the victim he pointed his gun at and prevented
her from being killed; and he prevented another victim from being raped. (Ibid.) The
defendant also argued that he was unaware of his coperpetrator’s propensity for violence
and emphasized that he had turned himself into the police. (Ibid.)
The superior court summarily denied the defendant’s petition. (Drayton, supra, 47
Cal.App.5th at p. 971.) The court made extensive factual findings based on the
preliminary hearing testimony and ruled that the defendant was a major participant in the
underlying felonies who acted with reckless indifference to human life, which the court
stated was “blatantly apparent by his conduct, being armed and his participation in this
event, as well as the conduct of his co-conspirators, the other individuals.” (Id. at p. 981.)
This court reversed, concluding that “[a]t this stage of the petition review process,
governed by section 1170.95[,] [subdivision] (c), the trial court should not have engaged
in this factfinding without first issuing an order to show cause and allowing the parties to
present evidence at a hearing, as described in section 1170.95, subdivision (d).”
(Drayton, supra, 47 Cal.App.5th at p. 982, fn. omitted.)
The California Supreme Court is currently considering whether “superior courts
[may] consider the record of conviction in determining whether a defendant has made a
prima facie showing of eligibility for relief under . . . section 1170.95.” (People v. Lewis
(2020) 43 Cal. App. 5th 1128 (Lewis), review granted Mar. 18, 2020, S260598.)6 Superior
6
The California Supreme Court is also considering in Lewis “[w]hen . . . the right
to appointed counsel arise[s] under . . . section 1170.95, subdivision (c).” (Lewis, supra,
43 Cal. App. 5th 1128, review granted Mar. 18, 2020, S260598.)
12
courts are grappling with what record materials may be considered when determining
whether the defendant has made a prima facie case for relief and the California Supreme
Court will provide guidance on the issue in Lewis.
Here, the superior court first determined that defendant was ineligible for
section 1170.95 relief on count 1 because he was prosecuted as an aider and abettor,
which he admitted in his written waiver of rights, and was not convicted of felony murder
or murder under the natural and probable consequences doctrine. As detailed above,
defendant stated in his waiver of rights that the factual basis for his plea to second degree
murder as alleged in count 1 was provided by the preliminary hearing transcript, “which
describes the death of Azahel C[.] by which [defendant] did aid and abet by driving a car
from which the fatal shot was fired.” Defendant alleged in his section 1170.95 petition
that he was prosecuted under a felony-murder theory or under the natural and probable
consequences doctrine and that he did not aid and abet with the intent to kill. In addition,
defendant asserted in his section 1170.95 briefing that he was convicted of “a natural and
probable consequences murder.”
Contrary to the superior court’s finding that defendant was ineligible for
section 1170.95 relief because he was not convicted of felony murder or murder under
the natural and probable consequences doctrine, defendant’s admission in his waiver of
rights that he aided and abetted in Azahel C.’s death by driving the car from which the
fatal shot was fired did not refute the petition’s allegation that defendant was convicted of
murder under the natural and probable consequences doctrine. Rather, defendant’s
waiver of rights admission was ambiguous because it did not include a statement of
defendant’s intent. Direct aiders and abettors “know and share the murderous intent of
the actual perpetrator.” (People v. McCoy (2001) 25 Cal. 4th 1111, 1118.) On the other
hand, under the law in effect at the time of the offense, “if a person aid[ed] and abet[ted]
only an intended assault, but a murder result[ed], that person may [have] be[en] guilty of
that murder, even if unintended, if it [was] a natural and probable consequence of the
13
intended assault.” (Id. at p. 1117.) Defendant’s waiver of rights admission did not shed
light on defendant’s intent one way or the other. Thus, the trial court erred when, rather
than accepting the petition’s allegations as true, it found that defendant’s waiver of rights
admission established defendant was ineligible for relief because he was not convicted of
felony murder or murder under the natural and probable consequences doctrine. (See
Drayton, supra, 47 Cal.App.5th at p. 968 [“the trial court should accept the assertions in
the petition as true unless facts in the record conclusively refute them as a matter of
law”].)
Based on the allegations in the petition and the state of the record, we further
conclude the superior court erred when it determined that defendant failed to make a
prima facie showing of entitlement to relief on count 1.
Defendant alleged in the petition that he “did not, with the intent to kill, aid, abet,
counsel, command, induce, solicit, request, or assist the actual killer.” In addition,
defendant asserted in his briefing that he did not harbor an intent to kill but rather shared
Camacho’s intent solely to scare rival gang members by shooting at them. Defendant
argued that the record demonstrated “the[] intent was simply to scare rival gang
members,” not to shoot or kill them, based on CI2’s preliminary hearing testimony that
Camacho stated he “ ‘told ‘em to drive back around the block and if it was clear he was
going to shoot at them’ ”; Camacho stated that he “ ‘fucked up’ ”; and drive-by shootings
were unacceptable to Norteños. (Italics added.)
Despite the petition’s allegations, the superior court determined that the
“evidence . . . supports the People’s contention that [defendant] was fully aware of what
his codefendant intended to do and . . . shared in his codefendant’s intent to kill rival
gang members.” The court found that defendant “knew the area where the shooting
occurred was frequented by rival S[u]reños gang members. [¶] . . . [Defendant] drove
around the block at least twice, as was observed on the video surveillance footage.
[Defendant] took the gun that was used to kill Azahel [C.] to a fellow gang member’s
14
home after the shooting, and later he either sold or got rid of the car which was used to
hunt down a rival gang member and used to carry out the drive-by shooting that resulted
in Azahel C[.]’s early demise. [¶] [Defendant’s] intent may also be gleaned from the
existence of a gang rivalry that was testified to by the expert with respect to criminal
street gangs.”
As in Drayton, in making these findings the superior court weighed the evidence
and made credibility determinations to resolve a disputed issue, namely, whether
defendant acted with an intent to kill. (See Drayton, supra, 47 Cal.App.5th at p. 980.)
While it may be possible to infer defendant’s intent by weighing the evidence in the
record, at the prima facie stage the superior court was obligated to accept the petition’s
allegations as true unless they were refuted by the record of conviction as a matter of law.
(Ibid.) Because the allegations were not refuted by the record as a matter of law, the
superior court erred when it determined that defendant harbored an intent to kill. (See id.
at p. 982.)
The superior court’s alternate, implicit determination that defendant was ineligible
for relief because he could be convicted of felony murder under revised section 189 was
also in error. The superior court found that “defendant was a major participant” in
Azahel C.’s murder who “acted in reckless indifference [to] human life,” which was an
implicit determination that defendant could be convicted of felony murder under the
changes to section 189. However, as defendant argued below, the felony-murder rule is
inapplicable here because the felony underlying the murder is assaultive in nature. When
the underlying felony is assaultive in nature, “the felony merges with the homicide and
cannot be the basis of a felony-murder [conviction]. An ‘assaultive’ felony is one that
involves a threat of immediate violent injury.” (Chun, supra, 45 Cal.4th at p. 1200, fn.
omitted [determining that “shooting at an occupied vehicle under section 246 is assaultive
15
in nature and hence cannot serve as the underlying felony for purposes of the felony-
murder rule”].)7
As in Drayton, the superior court weighed the evidence and made credibility
determinations to resolve the disputed issue of whether defendant acted with the intent to
kill. (See Drayton, supra, 47 Cal.App.5th at p. 980.) Because this issue was contested
and the record did not establish as a matter of law that defendant acted with the intent to
kill, an evidentiary hearing was the proper avenue in which to evaluate the disputed
question of defendant’s mental state. (See id. at pp. 980-982.)
Accordingly, we will reverse the superior court’s order determining that defendant
failed to establish a prima facie case of entitlement to relief on count 1 under
section 1170.95. We will remand the matter for the issuance of an order to show cause
and a hearing on defendant’s section 1170.95 petition as it pertains to count 1. (See
Drayton, supra, 47 Cal.App.5th at pp. 982-983; § 1170.95, subds. (c), (d).) We express
no opinion regarding defendant’s entitlement to relief on count 1 following the hearing.
IV. DISPOSITION
The superior court’s order denying defendant’s Penal Code section 1170.95
petition for failure to state a prima facie case is reversed. The matter is remanded to the
superior court with directions to issue an order to show cause (Pen. Code, § 1170.95,
subd. (c)) and hold a hearing on the petition as it pertains to count 1 (Pen. Code,
§ 1170.95, subd. (d)).
7
The Attorney General does not address the merger doctrine.
16
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
ELIA, ACTING P.J.
DANNER, J.
People. v. Pulido
H047751