People v. Giraldes CA6

Filed 8/20/21 P. v. Giraldes 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H047471
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 157274)
v.
LARRY GIRALDES, JR.,
Defendant and Appellant.
In the early 1990s, petitioner Larry Giraldes was tried for two murders on various
theories, including deliberate and premeditated killing, lying in wait, direct aiding and
abetting, and murder as a natural and probable consequence of a conspiracy to distribute
drugs. He was convicted of two counts of first degree murder; those convictions were
later reduced to second degree murder.
In 2018, Giraldes sought resentencing under Penal Code section 1170.95 on the
theory that his murder convictions were based on a now-invalid theory of natural and
probable consequences.1 The trial court denied Giraldes’s section 1170.95 petition for
resentencing for failure to make a prima facie showing of entitlement to relief. On
appeal, Giraldes contends, and the Attorney General concedes, that the trial court
engaged in improper factfinding and should have issued an order to show cause and held
an evidentiary hearing on the merits of the petition. The Santa Clara County District
Attorney, as amicus curiae, contends that the trial court properly denied the petition, both
1
All further statutory citations are to the Penal Code unless otherwise indicated.
because of pleading deficiencies and because there is substantial evidence supporting a
still-valid theory of murder. In response to our requests for supplemental briefing, the
Attorney General agreed with the District Attorney that the petition contains pleading
deficiencies.
We conclude that Giraldes failed to plead facts that, if true, would entitle him to
relief. Because Giraldes failed to satisfy the section 1170.95 pleading burden, the trial
court did not err in denying his petition. However, we modify the order to provide that
the denial is without prejudice to the filing of a new petition. As so modified, we affirm.
I. BACKGROUND
A. Factual Summary2
In 1991, Guillermo Chavez ran a drug ring that sold high grade cocaine.
Alexander Fry and Peter Jouron worked for Chavez, distributing cocaine and collecting
drug debts. Giraldes sold drugs for Chavez. Willie Lee Shackelford acted as a runner for
Giraldes. Shackelford also worked at a used car dealership partly owned by Kourosh
Saghafian. Giraldes lived with brothers Rosario and Michael Grasso. Saghafian and the
Grasso brothers were among Chavez’s customers.
Tension developed between Chavez and Fry and Jouron, in part because Chavez
suspected that Fry and Jouron were diluting his cocaine. In October 1991, Chavez told
his brother and another man that Fry and Jouron were planning to kill him and that he
was going to kill them first.
Giraldes disliked Fry and Jouron and told Saghafian he wanted to get rid of them.
Giraldes also told Saghafian that he was going to put mercury in Jouron’s drink.
2
We take the facts from our prior opinion in People v. Giraldes, et al. (June 22,
1995, H011038) [nonpub. opn.], (case No. H011038), where they are set forth more fully.
On our own motion, we take judicial notice of that prior opinion. (Evid. Code, §§ 452,
subd. (d), 459.) We also take judicial notice of the record in Giraldes’s prior appeal
(case No. H011038), as requested by the District Attorney. (Evid. Code, §§ 452,
subd. (d), 459.)
2
In October 1991, Jouron, Giraldes, the Grasso brothers, and others stole a large
collection of guns. Jouron and Fry delivered most of the stolen guns to Chavez on the
evening of October 12.
On October 13, Giraldes, Shackelford, and the Grasso brothers removed guns from
a friend’s residence.
At approximately 7:35 p.m. that night, San Jose police responded to reports of
gunshots in the area of Alum Rock Park in San Jose. There, the police found Fry and
Jouron shot to death in Fry’s pickup truck. Fry had suffered gunshot wounds from a
.12-gauge shotgun and a 9-millimeter firearm. Jouron had two gunshot wounds,
including one to the head, from a .45-caliber firearm as well as a gunshot wound from a
9-millimeter firearm.
Early the following morning, Giraldes, Shackelford, and Rosario Grasso went to
the home of John DeRose. Giraldes and Shackelford said they had “just killed” Fry and
Jouron; Giraldes said they killed the victims because it was “better them than us.”
Shackelford said that he drove, Rosario Grasso used one gun, and Michael Grasso used
the other gun. Rosario Grasso said that he shot Jouron in the head. Shackelford later told
Saghafian that Michael Grasso had shot Fry in the head with a shotgun and that Rosario
Grasso had killed Jouron.
At trial, Giraldes testified that he witnessed the Grasso brothers shoot the victims.
B. Procedural History
Giraldes and Shackelford were tried jointly for the murders of Fry and Jouron.
The jury was instructed on various theories of guilt for the murders, namely: deliberate
and premeditated killing, lying in wait, direct aiding and abetting, and murder as a natural
and probable consequence of a conspiracy to distribute drugs. Both Giraldes and
Shackelford were convicted of two counts of first degree murder. Giraldes also was
convicted of burglary, illegal possession of a gun by a felon, and conspiracy to escape by
force and violence. The trial court sentenced Giraldes to two consecutive indeterminate
3
terms of 25 years to life and to a determinate term of 12 years 4 months. This court
affirmed Giraldes and Shackelford’s convictions in an opinion issued on June 22, 1995.
In 2014, the California Supreme Court held in People v. Chiu (2014) 59 Cal.4th
155 (Chiu), superseded by statute as stated in People v. Lopez (2019) 38 Cal.App.5th
1087, 1103, that a defendant cannot be convicted of first degree premeditated murder
under the natural and probable consequences doctrine. On May 18, 2015, Giraldes filed a
petition for writ of habeas corpus based on Chiu. The superior court granted that petition
in 2016, noting that it was not possible to determine whether the jury had convicted
Giraldes of first degree murder based on a valid theory, such as direct aiding and
abetting, or the now invalid natural and probable consequences theory. The superior
court reduced Giraldes’s convictions to second degree murder and resentenced him to
consecutive indeterminate terms of 15 years to life on those convictions.
In December 2018, Giraldes filed a petition for writ of habeas corpus seeking to
have his murder convictions vacated pursuant to recently enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Senate Bill 1437). In it, Giraldes asserted that he “was
convicted on the now invalid natural and probable consequences doctrine . . . .”
With the assistance of counsel, Giraldes later filed what was styled as a
supplemental petition for resentencing under section 1170.95. In support of that
supplemental petition, Giraldes declared that he is “eligible for relief under
section 1170.95 because an information 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 was convicted by jury of first degree murder, which
was later reduced to a conviction of second degree murder; and he could not be convicted
of first or second degree murder because of changes to . . . sections 188 or 189 made
effective January 1, 2019.” The supplemental petition incorporated by reference the
habeas petition.
4
The prosecutor opposed the petition, arguing that Giraldes is ineligible for
section 1170.95 relief because he is not someone who “could not be convicted of first or
second degree murder because of changes to [s]ection 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a)(3).) The prosecutor asserted that the record of
conviction contains substantial evidence supporting Giraldes’s murder convictions on a
direct aiding and abetting theory (as evidenced by the fact that the jury was instructed on
that theory) and that the existence of such evidence means he cannot make the prima
facie showing required by section 1170.95, subdivision (a)(3).3 The prosecutor also
argued that a section 1170.95 petitioner is required to “prove his or her eligibility with
independent and objective evidence, rather than by merely alleging that he or she falls
within the provisions of . . . section 1170.95(a)(1-3).”
At a hearing on Giraldes’s petition, the trial court opined that Giraldes had made a
prima facie showing that “a complaint was filed charging [him] with murder which could
be prosecuted under a theory of natural and probable consequences or one of the now
questioned forms of felony murder” (§ 1170.95, subd. (a)(1)) and that he “was convicted
of murder on that charging document” (§ 1170.95., subd. (a)(2)). The court expressed the
view that Giraldes had not set forth sufficient facts to make a prima facie showing that he
could not be convicted of first or second degree murder because of changes to
section 188 or 189 (§ 1170.95, subd. (a)(3)) because he did not allege facts showing that
“he could not be convicted under a theory of aiding and abetting with express malice.” In
the court’s view, Giraldes needed to allege facts showing he could not be convicted under
any of the theories of liability on which the jury was instructed at his trial. The court
permitted Giraldes to amend his petition.
3
The prosecutor also argued below that Senate Bill 1437 is unconstitutional. This
and other courts of appeal have since held that Senate Bill 1437 passes constitutional
muster. (See, e.g., People v. Alaybue (2020) 51 Cal.App.5th 207; People v. Bucio (2020)
48 Cal.App.5th 300, 311-312; People v. Superior Court (Ferraro) (2020) 51 Cal.App.5th
896.) This issue is not raised on appeal.
5
Giraldes filed a second supplemental petition. In it, he alleged what he had
previously declared—that “an information 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 which was reflected in the instructions; he was
convicted by jury of first degree murder, which was later reduced to a conviction of
second degree murder; and he could not be convicted of first or second degree murder
because of changes to . . . sections 188 or 189 made effective January 1, 2019.” In an
accompanying brief, Giraldes argued—based on the evidence presented at his trial—that
he could not be convicted of murder under any theory but the now-invalid natural and
probable consequences theory. Specifically, he argued that he could not be convicted as
the actual killer because the witnesses who implicated him as a shooter had credibility
problems and because there was “evidence show[ing] Chavez and others working for him
were present and could have been the gunman.” We understand this argument to be that
there was reasonable doubt at his trial as to whether he could have been one of the killers.
He further argued that he could not be convicted as a direct aider and abettor with intent
to kill because, “[w]hile a few witnesses with serious credibility problems said petitioner
expressed a plan or desire to kill Fry and Jouron, the weight of the evidence showed it
was Chavez who had the motive to kill them and planned it without petitioner being
present.”
The trial court denied the petition without issuing an order to show cause. The
court noted that while Giraldes had both alleged and declared that he “could not be
convicted of first or second degree murder because of changes to . . . sections 188 or 189
made effective January 1, 2019,” he had “set[] forth no facts . . . in support of that
assertion.” The court concluded that there was substantial evidence in the record to
support murder convictions under a direct aiding and abetting theory; that such evidence
means Giraldes could be convicted of first or second degree murder despite the recent
6
changes to changes to section 188 or 189; and that, accordingly, he is ineligible for
resentencing.
Giraldes timely appealed.
II. DISCUSSION
On appeal, Giraldes maintains that the trial court engaged in impermissible
factfinding in concluding that he failed to make a prima facie showing of entitlement to
section 1170.95 relief. The Attorney General concurs with that argument in his
respondent’s brief. The Santa Clara District Attorney, as amicus, argues that the petition
was properly denied for two independent reasons: the petition was inadequately pleaded
and the existence of substantial evidence of direct aiding and abetting liability makes
Giraldes ineligible for section 1170.95 relief.
A. Legal Principles—Senate Bill 1437 and Section 1170.95
Prior to the enactment of Senate Bill 1437, “an aider and abettor [was not required
to] personally possess malice, express or implied, to be convicted of second degree
murder under a natural and probable consequences theory.” (People v. Gentile (2020) 10
Cal.5th 830, 847 (Gentile).) Indeed, “ ‘the mens rea of the aider and abettor with respect
to [the nontarget] offense [was] irrelevant [because] culpability [was] imposed simply
because a reasonable person could have foreseen the commission of the nontarget crime.’
[Citation.]” (Chiu, supra, 59 Cal.4th at p. 164)
Senate Bill 1437 amended section 188 to provide that, outside the context of
felony murder, “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.) “The natural and probable
consequences doctrine is incompatible with this requirement . . . .” (Gentile, supra, 10
Cal.5th at p. 847.) Accordingly, our Supreme Court has concluded that “Senate Bill 1437
eliminates natural and probable consequences liability for murder regardless of degree.”
(Id. at pp. 847-848.)
7
Senate Bill 1437 also enacted section 1170.95, subdivision (a), which provides:
“A person convicted of felony murder or murder under a natural and probable
consequences theory may 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 when all of the following conditions apply: [¶] (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. [¶] (3) The petitioner could not be
convicted of first or second degree murder because of changes to [s]ection 188 or 189
made effective January 1, 2019.” (Stats. 2018, ch. 1015 § 4.)
The petition is required to include: “(A) A declaration by the petitioner that he or
she is eligible for relief under this section, based on all the requirements of
subdivision (a). [¶] (B) The superior court case number and year of the petitioner’s
conviction. [And] [¶] (C) [w]hether the petitioner requests the appointment of counsel.”
(§ 1170.95, subd. (b)(1).) “[U]pon the filing of a facially sufficient petition,” the statute
“requir[es] that counsel be appointed.” (People v. Lewis (2021) 11 Cal.5th 952, 970
(Lewis).)
“[T]hen the court proceeds to subdivision (c) to assess whether the petitioner has
made ‘a prima facie showing’ for relief. (§ 1170.95, subd. (c).)” (Lewis, supra, 11
Cal.5th at p. 960.) Our Supreme Court recently held that section 1170.95, subdivision (c)
“describ[es] only a single prima facie showing” (Lewis, supra, at p. 962) and that “a trial
court can rely on the record of conviction in determining whether that single prima facie
showing is made.” (Id. at p. 970.) “[T]he prima facie inquiry under subdivision (c) is
limited. Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “the
court takes petitioner’s factual allegations as true and makes a preliminary assessment
8
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.” ’ [Citations.]
‘[A] court should not reject the petitioner’s factual allegations on credibility grounds
without first conducting an evidentiary hearing.’ [Citations.] ‘However, 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.” ’ [Citations.]” (Id. at p. 971; see People v. Drayton (2020) 47
Cal.App.5th 965, 980 (Drayton), overruled on other grounds as stated in Lewis [“the trial
court should assume all facts stated in the section 1170.95 petition are true” unless they
are “untrue as a matter of law” or refuted by the record and may not engage in
“factfinding involving the weighing of evidence or the exercise of discretion”].) “If,
accepting the facts asserted in the petition as true, the petitioner would be entitled to relief
because he or she has met the requirements of section 1170.95[, subdivision] (a), then the
trial court should issue an order to show cause.” (Drayton, supra, at 980.)
The legal sufficiency of a pleading is a legal question subject to de novo
review. (See People v. Perlas (2020) 47 Cal.App.5th 826, 832 [a demurrer to an
accusatory pleading challenges the sufficiency of the pleading and raises an issue of law
that is reviewed demurrer de novo].) We likewise review questions of statutory
interpretation de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.)
B. Giraldes Failed to Meet His Section 1170.95 Pleading Burden
As noted above, the District Attorney maintains the petition was properly denied
because Giraldes failed to meet his pleading burden. Specifically, the District Attorney
argues Giraldes merely declared his eligibility without alleging facts supporting that
conclusion. We requested that the parties file supplemental briefs addressing whether
Giraldes satisfied his section 1170.95 pleading burden.4
4
The trial court did not deny the petition based on pleading deficiencies.
However, the issue was adequately preserved for appellate review. At oral argument
9
Giraldes responds that it is sufficient for a petition merely to parrot the
requirements set forth in section 1170.95, subdivision (a) without supporting factual
allegations. Giraldes further argues that, even if he was required to allege facts, he
satisfied that burden because his second supplemental petition “explained, in detail, and
with copious reference both to the trial record and to relevant statutory and case law, why
he could not be convicted” of murder under any currently viable theory. He asserts that
while the “factual recitations [in the second supplemental petition] are couched in terms
of legal arguments rather than as express factual allegations, undeniably implicit in these
arguments are that appellant was not the actual killer; he did not with intent to kill aid and
abet the actual killers; and he neither was a major participant in the underlying felony nor
acted with reckless indifference to human life.”
The Attorney General responds that Giraldes failed to allege “facts to support his
claim that he could not now be convicted of second degree murder under a still viable
theory, [such that he] failed to sustain his burden of making a prima facie showing of
eligibility for relief under section 1170.95.”
1. Legal Principles—Pleading Requirements
At the prima facie stage, the trial court accepts as true all facts stated in the
section 1170.95 petition, so long as they are not untrue as a matter of law or disproved by
the record. (Drayton, supra, 47 Cal.App.5th at p. 980; Lewis, supra, 11 Cal.5th at
p. 971.) Generally, legal conclusions are insufficient to satisfy a pleading burden.
(See People v. Duvall (1995) 9 Cal.4th 464, 474 (Duvall) [“To satisfy the initial burden
of pleading adequate grounds for [habeas] relief, . . . ‘[c]onclusory allegations made
below, the court questioned whether Giraldes had “set forth enough facts . . . to show that
he could not be convicted now, because 188 and 189 have been changed.” After some
discussion with Giraldes’s counsel, the court offered to permit Giraldes to amend his
petition to make the requisite allegations. Thereafter, Giraldes filed his second
supplemental petition. We have an obligation to address the pleading issue given that
“ ‘we review the ruling, not the court’s reasoning and, if the ruling was correct on any
ground, we affirm.’ ” (People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11.)
10
without any explanation of the basis for the allegations do not warrant relief, let alone an
evidentiary hearing.’ ”]; Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d
276, 279, fn. 4 [“the general rule [is] that a complaint must contain only allegations of
ultimate facts as opposed to allegations of evidentiary facts or of legal conclusions or
arguments”].) Instead, the “rule which applies to all kinds of pleading, whether criminal
or civil,” is that “ ultimate facts are to be pleaded . . . .” (People v. Tinnen (1920) 49
Cal.App. 18, 23 [addressing adequacy of allegations in an information]; People v.
Green (1924) 65 Cal.App. 234, 235-236 [“It is ordinarily sufficient to charge an offense
in the language of the statute if the latter defines it or describes the acts constituting the
offense . . . . [¶] [An] information [that] charges in the language of the statute . . . charges
ultimate facts”]; C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861,
872 [“To survive a demurrer, the complaint need only allege facts sufficient to state a
cause of action; each evidentiary fact that might eventually form part of the plaintiff’s
proof need not be alleged”].) Ultimate facts are the elements of a crime and the elements
of certain defenses, the existence of which is determined by the trier of fact from the
existence of one or more evidentiary facts. (People v. Thompson (1980) 27 Cal.3d 303,
315, fn. 13, disapproved of on other grounds as stated in People v. Scott (2011) 52
Cal.4th 452, 470-471; People v. McCall (2004) 32 Cal.4th 175, 182.)
Our colleagues in Division Two of the Second District Court of Appeal recently
applied these principles to a section 1170.95 petition, holding that a petitioner fails to
make the requisite prima facie showing of eligibility for relief where his or her petition
alleges legal conclusions as opposed to facts. (People v. Nunez (2020) 57 Cal.App.5th
78, 89 (Nunez), review granted Jan. 13, 2021, S265918.)5 In compliance with the general
rule governing pleadings in California, a section 1170.95 petition must allege ultimate
facts that, if true, show entitlement to relief.
5
The Supreme Court has deferred further action in Nunez pending its decision in
Lewis.
11
2. Analysis
Section 1170.95 sets forth three conditions that must be satisfied by a petitioner
seeking 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. [¶] (3) The petitioner could not be convicted of first or second degree
murder because of changes to [s]ection 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (a).)
Giraldes alleged that “an information 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 which was reflected in the instructions; he was
convicted by jury of first degree murder, which was later reduced to a conviction of
second degree murder”; he “was convicted on the now invalid natural and probable
consequences doctrine”; “and he could not be convicted of first or second degree murder
because of changes to . . . sections 188 or 189 made effective January 1, 2019.” The first
three allegations—those regarding the charging document and conviction—are factual
and satisfy the first two pleading requirements.6 (§ 1170.95, subds. (a)(1)-(2), (b)(1)(A).)
The final allegation—that “he could not be convicted of first or second degree murder
because of changes to . . . sections 188 or 189 made effective January 1, 2019”—is a
legal conclusion. (Nunez, supra, 57 Cal.App.5th at pp. 88-89, review granted [describing
6
The Attorney General mistakenly states that Giraldes “failed to specifically
declare that he ‘was convicted of 2nd degree murder under the natural and probable
consequences doctrine or under the 2nd degree felony murder doctrine[.]’ ” That
allegation appeared in Giraldes’s original petition, which was incorporated by reference
in his supplemental petitions.
12
assertion ‘that petitioner ‘could not now be convicted of 1st or 2nd degree murder
because of changes made to . . . [sections] 188 and 189’ ” as a “legal conclusion”].)
Giraldes alleges no facts to support that legal conclusion. For example, he does
not allege that he was “not the actual killer”; that 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”; that 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”; or that “[t]he victim was not a peace officer in the performance of his
or her duties.”7 Instead, in support of his second supplemental petition, Giraldes
advanced legal arguments as to why a jury could not convict him of murder as the actual
killer or a direct aider and abettor based on the evidence presented at trial and inferences
drawn therefrom. He argues in his supplemental brief that those arguments satisfy his
pleading requirement. They do not for three reasons. First, legal arguments, of course,
are not facts. In the absence of factual allegations, the trial court cannot assess the prima
facie showing in the manner prescribed in Lewis—that is, take the factual allegations
stated in the section 1170.95 petition as true and determine whether, if true, the petitioner
would be entitled to relief. (Lewis, supra, 11 Cal.5th at pp. 970-971.) Second, on a
section 1170.95 petition, the question is not whether the People proved petitioner’s guilt
of murder on a still-valid legal theory at trial. The question is whether the People could
do so based not only on the record of conviction but on new or additional evidence.
(§ 1170.95, subd. (d)(3).) Third, Giraldes’s arguments urged the trial court to make
credibility determinations and weigh the trial evidence. For example, he argued that he
could not be convicted as a direct aider and abettor with intent to kill because the
witnesses that testified that he had expressed a desire to kill the victims had “serious
7
These factual allegations appear on the pre-printed form petition commonly used
by section 1170.95 petitioners and are sufficient to satisfy the section 1170.95 pleading
burden.
13
credibility problems” and “the weight of the evidence showed it was Chavez who had the
motive to kill them and planned it without petitioner being present.” The sort of
evaluation and weighing of the evidence that Giraldes invited the trial court to engage in
is precisely what this court held to be impermissible at the prima facie stage in Drayton.
(Drayton, supra, 47 Cal.5th at p. 982.)
For all the foregoing reasons, we conclude that Giraldes failed to meet his
section 1170.95 pleading burden. Accordingly, the trial court did not err in denying the
petition.
That said, numerous considerations convince us that, on remand, Giraldes may file
an amended petition. First, California courts have long adhered to the “policy that cases
should be tried on their merits rather than dismissed for technical defects in pleading.”
(Bloniarz v. Roloson (1969) 70 Cal.2d 143, 149; Denham v. Superior Court (1970) 2
Cal.3d 557, 566 [noting the strength of the policy that “seeks to dispose of litigation on
the merits rather than on procedural grounds”].) In furtherance of that policy, “liberal
interpretation and amendment of pleadings is strongly favored . . . .” (Dieckmann v.
Superior Court (1985) 175 Cal.App.3d 345, 352; Herrera v. Superior Court (1984) 158
Cal.App.3d 255, 259 [“ ‘Great liberality is indulged in matters of amendment to the end
that lawsuits may be determined upon their merits’ ”].) These “ ‘principles apply in the
criminal context’ ” as well. (People v. Huerta (2016) 3 Cal.App.5th 539, 544 [stating, in
dicta, that liberal amendment principles apply to Proposition 47 petitions].) For example,
in a habeas corpus proceeding, “a court issuing an OSC retains the discretion to grant a
party leave to amend” to cure “technical irregularities in the pleadings,” and [r]etention of
this power is necessary to ensure that technical and inadvertent pleading errors do not
lead to premature dismissals that would frustrate the ends of justice or require holding
unnecessary evidentiary hearings that would squander scarce judicial resources.”
(Duvall, supra, 9 Cal.4th at p. 482.)
14
Second, section 1170.95 expressly contemplates the denial of petitions containing
pleading defects without prejudice to the filing of another petition. Specifically,
subdivision (b)(2) permits the superior court to deny a petition without prejudice to the
filing of another petition if the petition fails to include any of the following: “(A) A
declaration by the petitioner that he or she is eligible for relief under this section, based
on all the requirements of subdivision (a). [¶] (B) The superior court case number and
year of the petitioner’s conviction. [¶] (C) Whether the petitioner requests the
appointment of counsel.” (§ 1170.95, subd. (b).)
Third, no court had addressed the section 1170.95 pleading requirements at the
time Giraldes filed his petitions. Therefore, he “is entitled to an opportunity to file a new
petition meeting the statutory requirements” as we have now articulated them. (People v.
Page (2017) 3 Cal.5th 1175, 1189 [Proposition 47 petitioner entitled to file a new petition
where “the proper allocation of the burden of proof and the facts necessary to
resentencing on a Vehicle Code section 10851 conviction were not set out expressly in
the text of Proposition 47, and . . . had yet [to be] judicially articulated when defendant
submitted his petition for recall”].) Accordingly, we shall modify the order denying
Giraldes’s petition to provide that the denial is without prejudice to the filing of a new
petition.
C. Section 1170.95 Does Not Import the Substantial Evidence Standard
The trial court denied the petition based on an erroneous reading of
section 1170.95 that the District Attorney endorses in his amicus brief. We explain the
flaw in the court’s approach in an effort to provide guidance for any further proceedings
in this matter.
The trial court reasoned that Giraldes cannot satisfy the third condition for
section 1170.95 relief—that is, he is not a person who “could not be convicted of first or
second degree murder because of changes to Section 188 or 189 made effective
15
January 1, 2019” (§ 1170.95, subd. (a)(3))—because there is substantial evidence in the
record of conviction to support his murder convictions on a theory of direct aiding and
abetting. In other words, the trial court applied the substantial evidence standard to
determine whether Giraldes had met his prima facie burden. Under the trial court’s
approach, a section 1170.95 petition fails where substantial evidence exists in the record
of conviction supporting a hypothetical finding that the petitioner is guilty of murder
under a currently valid theory. The finding is hypothetical because, as the trial court
itself acknowledged in the context of Giraldes’s Chiu-based habeas, there is no way of
knowing the theory on which the jury based its verdicts.
The trial court’s reading of section 1170.95, subdivision (a)(3) finds support in
People v. Garcia (2020) 57 Cal.App.5th 100, 115, review granted February 10, 2021,
S265692, which concluded that the petition at issue failed to make the requisite prima
facie showing because “substantial evidence support[ed] a murder conviction based on a
direct aiding and abetting theory . . . .” Garcia relied on People v. Duke (2020) 55
Cal.App.5th 113, 123, review granted January 13, 2021, S265309, which held that—at
the evidentiary hearing phase—“the prosecution must . . . prove beyond a reasonable
doubt that the defendant could still have been convicted of murder under the new law—in
other words, that a reasonable jury could find the defendant guilty of murder with the
requisite mental state for that degree of murder. This is essentially identical to the
standard of substantial evidence . . . .”
However, this court disagreed with the view that the Legislature imported the
substantial evidence standard into section 1170.95, subdivision (a)(3) in our decision in
People v. Lopez (2020) 56 Cal.App.5th 936, review granted February 10, 2021, S265974.
Like Duke, Lopez addressed the prosecutor’s burden at the evidentiary hearing stage. We
held that the prosecutor bears the burden to prove beyond a reasonable doubt the
elements of first or second degree murder under the current law. (Id. at p. 951.)
16
Division 7 of the Second District Court of Appeal reached the same conclusion in
People v. Rodriguez (2020) 58 Cal.App.5th 227, 230-231, review granted March 10,
2021, S266652. Rodriguez reasoned that the Legislature’s goal in enacting Senate
Bill 1437—to “reform[ ] aider and abettor liability in homicide cases to more equitably
sentence both past and future offenders in relation to their own actions and subjective
mentes reae”—“is best effectuated by resentencing individuals convicted of first or
second degree murder under the natural and probable consequences doctrine or the felony
murder rule if the evidence, whether from the record of conviction alone or with new and
additional evidence introduced at the subdivision (d)(3) hearing, fails to establish beyond
a reasonable doubt they, in fact, acted during the crime with the now-required mental
state. To deny resentencing simply because a jury could have found that they may have
acted with express malice would frustrate the legislation’s purpose.” (Rodriguez, supra,
at pp. 240-241.) Rodriguez further reasoned that it “is unlikely the Legislature would
have” required the prosecutor to prove ineligibility beyond a reasonable doubt (as
section 1170.95, subdivision (d)(3) does) “if it had intended only an appellate-type
review of the sufficiency of the evidence of the petitioner’s guilt on a still-viable theory,
rather than requiring the prosecutor to actually establish the petitioner’s guilt under the
newly amended statutes.” (Rodriguez, supra, at p. 242.) Moreover, Rodriguez noted
“[t]he improbability of such a legislative intent [in view of] subdivision (d)(3)’s provision
authorizing both parties to introduce new or additional evidence at the hearing to
determine whether the petitioner is ineligible for resentencing.” (Ibid.)
People v. Duchine (2021) 60 Cal.App.5th 798 likewise rejected Garcia and
Duke’s reading of section 1170.95, subdivision (a)(3) as prescribing a substantial
evidence standard of review. Duchine, like this case, concerned the petitioner’s burden at
the prima facie stage. Duchine reasoned that “[t]he standard adopted by Garcia, in which
the trial court focuses on the state of the existing record and applies an appellate review
substantial evidence standard, makes little sense in th[e] context” of section 1170.95,
17
which allows for the introduction of new or additional evidence. (Duchine, supra, at
p. 813.) Duchine further explained that “[t]he interpretation adopted by Garcia would
mean the prosecution’s burden would be to prove ‘beyond a reasonable doubt’ that
‘substantial evidence’ exists, which by itself borders on incomprehensible. The court
would then employ these two widely divergent standards in a combined (and backwards)
fashion to determine, as Garcia suggests, whether a jury hypothetically could have
found a defendant guilty under a permissible theory had it addressed the issue. In short,
the idea that the prosecution must prove beyond a reasonable doubt that there is
substantial evidence in a prior record to support a hypothetical finding of guilt on a
theory of murder that may never have been presented to a jury is beyond that border.”
(Id. at p. 814.)
We find Duchine and Rodriguez to be persuasive and adhere to the statutory
interpretation set forth in Lopez. Therefore, we conclude that it is error for a trial court to
apply a substantial evidence standard in assessing whether petitioner met his burden at
the prima facie stage. (Cf. Lewis, supra, 11 Cal.5th at p. 971 [stating that “the prima
facie inquiry . . . is limited” and that the trial court “ ‘ “takes petitioner’s factual
allegations as true” ’ ” unless refuted by the record of conviction].)
III. DISPOSITION
The order denying Giraldes’s petition is modified to provide that the denial is
without prejudice to the filing of a new petition. The order is affirmed as so modified.
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_________________________________
ELIA, ACTING P.J.
WE CONCUR:
_______________________________
BAMATTRE-MANOUKIAN, J.
_______________________________
DANNER, J.
People v. Giraldes
H047471