People v. Soto CA6

Filed 11/17/21 P. v. Soto 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H047919
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. F17281)
v.
JUAN LORENZO SOTO,
Defendant and Appellant.
I. INTRODUCTION
In 2009, a jury convicted defendant Juan Lorenzo Soto of first degree murder
(Pen. Code, § 187, subd. (a)), 1 conspiracy to commit robbery (§ 182, subd. (a)(1)), five
counts of second degree robbery (§ 211), and two counts of attempted second degree
robbery (§§ 664, 211), and found firearm and gang allegations true (§§ 12022.53,
subds. (b), (d), 186.22, subd. (b)(1)). The superior court sentenced defendant to 34 years
consecutive to 50 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
under recent changes to homicide law. After briefing and argument by the parties, the
1 All further statutory references are to the Penal Code unless otherwise indicated.
superior court denied the petition, determining that defendant was “unable to establish
that he could not now be convicted of first-degree murder.”
Defendant contends that the superior court erred when it denied the petition.
Defendant argues that the superior court improperly decided disputed issues of fact
instead of assuming the facts alleged in the petition were true unless refuted by the record
of conviction. The Attorney General concedes that defendant stated a prima facie case
for section 1170.95 relief and that the matter should be remanded for the issuance of an
order to show cause and an evidentiary hearing. 2
For reasons that we will explain, we conclude that defendant stated a prima facie
case of entitlement to relief under section 1170.95. We will therefore reverse the superior
court’s order and remand the matter for the issuance of an order to show cause and an
evidentiary hearing.
II. FACTUAL AND PROCEDURAL BACKGROUND3
A. Factual Background4
On the morning of July 25, 2004, defendant, Francisco Javier Valenciano, Jr., and
Anthony Gonzales drove from Watsonville to Santa Cruz to commit a robbery. They
were armed with a shotgun and a pistol. The liquor store they intended to rob was too
busy, so they decided to rob a group of seven men they had seen playing cards in a
2
Defendant also initially contended that double jeopardy principles bar the district
attorney from “us[ing] . . . the procedures set forth in section 1170.95 . . . to determine
whether defendant’s conviction for murder should remain as part of his original sentence”
because the trial court dismissed a felony-murder special circumstance allegation at the
district attorney’s request during trial. Defendant further contended that he had a
constitutional right to be present at all of the section 1170.95 proceedings. Defendant has
abandoned these claims based on the Attorney General’s concession that the trial court
erred because defendant stated a prima facie case for section 1170.95 relief.
3 The Attorney General requests that we take judicial notice of the proceedings
and opinion in case No. H034605. We hereby grant that request. (Evid. Code, §§ 450,
452.)
4 The factual background is a summary of the facts stated in this court’s opinion in
case No. H034605.
2
nearby driveway with a pile of money on the ground. When Gonzales, armed with the
shotgun, and defendant, armed with the pistol, approached the card players and directed
them to hand over their money, all but one of them, Rodolfo Escobar, complied. 5
Escobar instead insulted Gonzales and picked up the money. As one of Escobar’s friends
implored him to cooperate with the gunmen, Escobar said he had to work hard for his
money to support his family and that if Gonzales wanted the money, he should “ask [his]
mama for [it].” Gonzales pressed the shotgun against Escobar’s forehead and pulled the
trigger, blowing off the top of his head. Gonzales and defendant collected the money,
went back to the car, where Valenciano had been acting as a lookout, and drove off.
A gang expert opined that defendant, Valenciano, and Gonzales were members
of the Varrio Green Valley (VGV), a Norteño subset in Watsonville. When asked a
hypothetical question involving the facts of the incident, the expert opined that the
offenses were gang-related.
Defendant testified at trial. Defendant stated that Gonzales had dropped him off
at a church on the morning of July 25, 2004. After about 20 minutes, Gonzales suddenly
came up to defendant on foot and asked if defendant could give him a ride “like right
now.” Defendant realized that Gonzales needed to get rid of the car. He did not ask
questions because he did not want to be involved. From that day to the date of his arrest,
defendant never asked Gonzales what he had been doing that morning.
Defendant admitted that he was a VGV member. He testified that he claimed
VGV only because he lived in the Green Valley Apartments. He denied paying gang
taxes, being obligated to fellow gang members, or having enemies among rival Sureño
gangs. When asked about his various tattoos, Soto denied they had any gang-related
5
At least one victim testified that he tried to move away when he was told to put
his money on the ground, but a man holding a revolver told him to “Go and put all your
money down.”
3
meaning. He also denied ever being jumped into a gang, having any relatives who were
gang members, or participating in any gang activity while incarcerated.
B. Procedural History
1. Charges, Verdicts, Sentence, and Direct Appeal
Defendant was charged with conspiracy to commit robbery (§ 182, subd. (a)(1),
count 1); first degree murder (§ 187, subd. (a), count 2); five counts of second degree
robbery (§ 211, counts 3-7); and two counts of attempted second degree robbery
(§§ 664, 211, counts 8 & 9). It was alleged that counts 2 through 9 were committed for
the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that a principal personally
discharged a firearm causing death in the commission of counts 2 and 3 (§ 12022.53,
subds. (d), (e)(1)), that a principal personally used a firearm in the commission of
counts 4 through 9 (id., subds. (b), (e)), and that defendant had two prior strike
convictions (§ 667, subds. (b) - (i)).
In 2009, a jury found defendant guilty of all counts and found true the gang and
firearm allegations. Defendant stipulated to a court trial on the strike allegations. The
trial court granted defendant’s subsequent motion to strike the two prior strikes and
denied his motion for a new trial. The court sentenced defendant to a determinate term
of 34 years consecutive to 50 years to life.
This court affirmed defendant’s convictions in a 2012 unpublished decision.
2. Trial Court Proceedings on Section 1170.95 Petition for
Resentencing
In 2019, defendant filed a petition for resentencing pursuant to section 1170.95.
The petition consisted of a three-page preprinted form, two pages of which were a
declaration defendant signed under penalty of perjury. Among other boxes, defendant
checked boxes on the form declaring 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”; “[a]t trial, [he]
4
was convicted of 1st or 2nd degree murder pursuant to the felony 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 declaring 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”;
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”; and the victim was not a peace
officer.
The superior court appointed counsel to represent defendant, and the parties filed
multiple rounds of briefing.
In opposition to the petition, the district attorney asserted that defendant had failed
to state a prima facie case for relief because he “simply checked some boxes on a
form . . . and does not explain . . . how he could not now be convicted of felony murder”
under current law. The district attorney argued that defendant had “an obligation . . . to
show eligibility and . . . to cite to some facts or present some evidence to support [his]
claim.” Summarizing the evidence presented at trial, the district attorney also contended
that even if defendant had stated a prima facie case, the record of conviction
demonstrates that defendant was a major participant in the underlying robbery who acted
with reckless indifference to human life. The district attorney argued that “[m]uch like
robbing a known, violent drug dealer, three men robbing a group of seven men is
logically an act that would increase the risk to human life relative to other armed
robberies,” and that the facts demonstrated there was “an opportunity for [defendant] to
mitigate a violent armed robbery that was spiraling out of control, but [he] did nothing.”
The district attorney observed that defendant and his coparticipants “scoped out” the
men; defendant provided the car for the robbery; and, after the shooting, defendant “did
not stop to help the victim and instead gathered up the money on the ground and fled with
5
his cohorts. [Defendant] actively participated in the coverup that day, and then . . . went
to [a] barbeque.”
In reply, defendant asserted that the issue before the superior court was whether he
was a major participant in the underlying robbery who acted with reckless indifference to
human life. After summarizing the evidence presented at trial, defendant argued that this
“is not a situation . . . where there is evidence that [he] was in a position just before the
shooting to observe anything in [Gonzales’s] actions . . . that would have indicated that
[Gonzales] was likely to engage in lethal violence at that time, and that [he] realistically
had time to intervene and prevent the killing. It appears that the shooting in this case
occurred only seconds after [Escobar] resisted [Gonzales’s] attempts . . . to take and carry
away [his] money. Nor is there any evidence that once . . . Gonzales did the shooting, . . .
[he] could have done anything at that point.” Defendant further argued that “there is no
evidence from which it reasonably can be inferred that he harbored a willingness to kill,
or to assist a confederate in killing, to achieve the goal of robbing someone, or that he
anticipated the potential for loss of human life beyond that usually accompanying an
armed robbery. This is not reckless enough to support a finding that [he] was a major
participant in the killing who was acting with reckless indifference to human life. In
other words, there appears to be nothing in the plan that one can point to that elevated the
risk to human life beyond those risks inherent in any armed robbery.” Defendant
observed that the jury was not asked to determine whether he was a major participant in
the underlying felony who acted with reckless indifference to human life and that his
murder liability had been predicated on the now invalid natural and probable
consequences doctrine. 6
6 Defendant also filed a supplemental points and authorities in support of his
petition where he raised credibility issues with several of the prosecution witnesses and
discussed the DNA results.
6
At a hearing on whether defendant established a prima facie case for relief,
defendant asserted that an evidentiary hearing was required to determine whether he
could be convicted under the new theory that he was a major participant who acted with
reckless indifference to human life. Distinguishing cases cited by the district attorney
that pertained to the defendants’ failure to render aid to the victims, defendant argued that
this was not a situation where he could have rendered aid because there was nothing
anyone could have done after Escobar was shot in the head.
The superior court stated that defendant had an opportunity to intervene before the
shooting and that “while all this is occurring, [defendant] is using his own revolver . . . to
direct other victims back into the kill zone, basically.” Defendant countered that “all the
evidence shows [the shooting] was a spur of the moment” decision by Gonzales. The
court responded that it “agree[d]. There’s no evidence in the record by which one could
infer that [defendant] was aware that Gonzales had an intent to kill.” Defendant
contended that an evidentiary hearing was necessary “to get out the facts.”
The district attorney argued that “[t]his isn’t the time to . . . reweigh evidence”
because “[t]hat’s not the role of this petition. The jury has made those credibility
determinations. [¶] [T]he question is whether [defendant] can . . . credibly, without
reweighing the evidence, show that [he is not] a . . . major participant.” The district
attorney asserted that this case involved “textbook major participation with reckless
indifference to human life” and that defendant “need[ed] to present something more” than
“a check-box petition.” The district attorney argued that defendant had “done absolutely
nothing to take these horrific facts that have been established and supplement them and
show credibly . . . that he is not somebody who acted with reckless indifference.”
Defendant again argued that “this is what the [evidentiary] hearing is supposed to
be about” and that there was “nothing in the [robbery] plan . . . that elevated . . . this
situation to the risk of a human life beyond those inher[ent] with any [armed] robbery.”
The court responded, “[D]on’t leave out that they cased the scene first. They drove up,
7
pulled into the driveway, saw that there were seven individuals there, drove around the
block, came back ten minutes later. [¶] So these are three young Norteno members, two
of them armed, with the understanding that three of them are going to go into a group of
seven El Salvadorian young men[.] [¶] . . . [¶] And one would expect that they are
anticipating, if things go awry, weapons are going to be needed[] to be used.” Defendant
disputed that “there’s any evidence of that” and argued that the court was engaging in
“guesswork and speculation[.] [¶] . . . [¶] The fact that they drove around the block,
came onto the block, looked, came back again, shows nothing more than a robbery.
There is no evidence during that period of time that they were intending or thinking of
hurting anybody, and that is what is missing from this case.”
The district attorney disagreed, arguing, “We have three violent [VGV] gang
members planning a robbery. They pick seven men. There’s only three of them. . . .
[Defendant’s] right up there with his gun. [¶] And it’s not a short robbery. This is
extended. There’s seven men. There’s people resisting. There’s herding victims back.
There’s one victim that’s injured and then another victim who is threatened and then shot.
[¶] And then there’s the whole post-robbery conduct. [¶] It’s textbook major
participant, reckless indifference for human life, and we have nothing credible that
contradicts that[.] [Defendant] has done nothing in his petition to credibly” demonstrate
that he could not be convicted of murder under current law.
The district attorney urged the superior court to rely on the factual recitation in this
court’s opinion in case No. H034605, and the court agreed that it was appropriate for it to
rely on this court’s decision. Defendant disagreed, asserting that the standard for
determining whether a prima facie case has been established is different from an
appellate decision which recites the facts in the light most favorable to the judgment.
Defendant argued that in a prima facie review, the court “look[s] at the evidence from the
defense point of view.” The court took the matter under submission.
8
The superior court denied the petition at a subsequent hearing. The court
determined that at the prima facie stage, the court should evaluate the record of
conviction, including the appellate opinion, to determine whether it “present[s] credible,
solid evidence such that it can be said that there was sufficient evidence for the jury to
find beyond a reasonable doubt the defendant acted with reckless indifference as a major
participant[.] [¶] And here there is an abundance of solid, credible evidence such [that]
the jury would find beyond a reasonable doubt those facts, and consequently [defendant]
has not demonstrated that he could not be convicted on that theory.” The court found that
defendant had “not negated what’s contained in the record by offering any new or
different evidence”; Gonzales was well known to defendant; defendant planned the
robbery with Gonzales; defendant procured the gun he used to corral one or more of the
robbery victims so that they were together when Gonzales shot murder victim in the
head; and defendant fled from the crime scene rather than staying to assist.
III. DISCUSSION
A. Senate Bill No. 1437’s Statutory Framework and Our Standard of Review
The Legislature enacted Senate Bill No. 1437 (Senate Bill 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 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).) And section 189, subdivision (e), now limits liability
9
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.” (Stats. 2018, ch. 1015, § 3;
§ 189, subd. (e).)
In addition to the amendments to sections 188 and 189, Senate Bill 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.7 (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 prosecutor 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
7 There are two cases involving the statutory interpretation of section 1170.95
pending before the California Supreme Court. In People v. Strong, the court will
determine whether a felony-murder special circumstance finding rendered before the
court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark
(2016) 63 Cal.4th 522 (Clark) precludes a defendant from making a prima facie showing
under section 1170.95. (People v. Strong 2020 Cal.App.Unpub.LEXIS 8505, review
granted Mar. 10, 2021, S266606.) In People v. Duke, the court will decide whether, after
an order to show cause has issued, the district attorney must establish a defendant’s
ineligibility for relief by proving each element of murder liability under current law
beyond a reasonable doubt or if it can meet its burden by presenting substantial evidence
of the defendant’s murder liability under the revised murder statutes. (People v. Duke
(2020) 55 Cal.App.5th 113, review granted Jan. 13. 2021, S265309.)
10
first or second degree murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a).)
A section 1170.95 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) Whether 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).)” (Id. at p. 960.)
If the court finds that a prima facie showing has been made, it issues an order to
show cause and holds 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).) The burden of proof at the hearing is on the prosecution “to
prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.”
(Id., subd. (d)(3).) Both parties may rely on the record of conviction or present new or
additional evidence at the hearing. (Ibid.) Alternatively, “[t]he parties may waive a
resentencing hearing and stipulate that the petitioner is eligible to have his or her murder
conviction vacated and for resentencing. If there was a prior finding by a court or jury
that the petitioner did not act with reckless indifference to human life or was not a major
participant in the felony, the court shall vacate the petitioner’s conviction and resentence
the petitioner.” (Id., subd. (d)(2).)
We determine questions of statutory interpretation de novo. (See People v. Prunty
(2015) 62 Cal.4th 59, 71.) 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
11
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), overruled on another ground in Lewis, supra,
11 Cal.5th at pp. 962-970.)
B. Defendant Established a Prima Facie Case of Entitlement to Relief
Defendant contends that the superior court applied the incorrect standard when
assessing whether he stated a prima facie case for relief. Quoting our decision in
Drayton, defendant argues that the court “ ‘should not have evaluated and weighed the
evidence but instead should have accepted [his] asserted facts as true,’ ” and that based
on the asserted facts, an order to show cause should have issued. The Attorney General
concedes that the superior court erred in denying the petition “by improperly drawing
factual inferences from the record.” (Capitalization and bold omitted.) In an amicus
brief, the Santa Cruz County District Attorney asserts that the superior court properly
denied the petition because defendant “did not state a prima facie case for relief because
he did not show a reasonable likelihood that he was entitled to relief and that the relief
was dependent on the resolution of a disputed issue of fact.”
1. The Prima Facie Inquiry Under Section 1170.95
In Lewis, the California Supreme Court recently held that a superior court may
consider the record of conviction in determining whether a defendant has stated a prima
facie case for relief. 8 (Lewis, supra, 11 Cal.5th at p. 970; see also id. at p. 972
[“Appellate opinions . . . are generally considered to be part of the record of
conviction”].) The court stated that “[w]hile the [superior] court may look at the record
of conviction after the appointment of counsel to determine whether a petitioner has
made a prima facie case for section 1170.95 relief, the 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
8 The court also held that counsel must be appointed “upon the filing of a facially
sufficient petition.” (Lewis, supra, 11 Cal.5th at p. 970.)
12
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.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on
credibility grounds without first conducting an evidentiary hearing.’ [Citation.]
‘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.” ’ [Citation.]” (Id. at p. 971.) The court
cautioned that “[i]n reviewing any part of the record of conviction at [the prima facie
stage], a [superior] court should not engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion.’ [Citation.] As the People emphasize, the
‘prima facie bar was intentionally and correctly set very low.’ ” (Id. at p. 972.)
The district attorney, whose amicus brief was filed before the California Supreme
Court decided Lewis, urges us to equate a petitioner’s prima facie burden under
section 1170.95 to a Proposition 47 petitioner’s burden to establish entitlement to an
evidentiary hearing. Proposition 47 reduced certain offenses from felonies to
misdemeanors and permitted a defendant to petition for the recall of his or her sentence
if he or she “would have been guilty of a misdemeanor . . . had [Proposition 47] been in
effect at the time of the offense.” (§ 1170.18, subd. (a).) Section 1170.18 provides for
the recall of sentence under Proposition 47. The district attorney focuses on the fact that
under both section 1170.18 and in habeas proceedings, an evidentiary hearing is only
“ ‘required if, after considering the verified petition, the return, any denial, any affidavits
or declarations under penalty of perjury, and matters of which judicial notice may be
taken, the court finds there is a reasonable likelihood that the petitioner may be entitled
to relief and the petitioner’s entitlement to relief depends on the resolution of an issue
of fact.’ ” (People v. Romanowski (2017) 2 Cal.5th 903, 916 [importing the habeas
13
rule regarding evidentiary hearings into section 1170.18 proceedings]; Cal. Rules of
Court, rule 4.551(f)9 [rule of court pertaining to habeas proceedings].)
Although the California Supreme Court has analogized section 1170.95
proceedings to habeas proceedings (see Lewis, supra, 11 Cal.5th at p. 971), as have we
(see Drayton, supra, 47 Cal.App.5th at p. 977), there is an important distinction between
section 1170.95 proceedings and habeas proceedings that is fatal to the district attorney’s
argument. Unlike habeas proceedings, where the determination that an evidentiary
hearing is required is entirely separate from whether the petitioner has stated a prima
facie case for relief such that an order to show cause must issue (see rule 4.551(c)(1), (f)),
under section 1170.95 a petitioner is entitled to an evidentiary hearing once he or she has
stated a prima facie case (see § 1170.95, subd. (d)(1)). Thus, the habeas rule, which has
been extended to Proposition 47 proceedings, that an evidentiary hearing is “required
if . . . the court finds there is a reasonable likelihood that the petitioner may be entitled
to relief and the petitioner’s entitlement to relief depends on the resolution of an issue of
fact,” is inapplicable here. (Rule 4.551(f).) Rather, in section 1170.95 proceedings, the
determination that a petitioner has stated a prima facie case and that an evidentiary
hearing is required is one and the same. (See § 1170.95, subds. (c), (d)(1).) Under Lewis
and section 1170.95, at the prima facie stage, “ ‘ “the [superior] 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” ’ ” and afford the petitioner an evidentiary
hearing. (Lewis, supra, at p. 971; § 1170.95, subd. (d)(1).)10
9
All further rule references are to the California Rules of Court.
10 The district attorney also contends that defendant’s “argument[s] as to the facts
are not really factual disputes, but a legal argument,” and that a prima facie showing
should require a section 1170.95 petitioner “to do more than check a few boxes without
any reference to the record of the case.” The district attorney points to People v. Garcia
(continued)
14
2. The Superior Court Erred Because It Applied the Incorrect
Standard and Weighed Facts in the Record
The superior court found that at the prima facie stage, it should evaluate the record
of conviction to determine whether it “present[s] credible, solid evidence such that it can
(2020) 57 Cal.App.5th 100, review granted February 10, 2021, S265692 (Garcia), where
our colleagues in Division Six of the Second District determined that because “substantial
evidence supports a murder conviction based on a direct aiding and abetting theory, [the
petitioner’s] conclusory allegations in his petition do not constitute a prima facie showing
that he could not be convicted of murder based on this theory” (id. at p. 115).
We respectfully conclude that Garcia’s use of the substantial evidence test is at
odds with the California Supreme Court’s statement in Lewis that at the prima facie stage
of section 1170.95 proceedings, unless the record of conviction “ ‘ “contain[s] facts
refuting the allegations made in the petition,” ’ ” a superior 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.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.)
Moreover, we observe that defendant did plead facts, by way of a declaration
signed under penalty of perjury, that, if true, would entitle him to relief. In the habeas
context at least, in the absence of evidence necessarily demonstrating otherwise,
defendant’s declaration would suffice to establish a prima facie case and trigger the
issuance of an order to show cause. (See People v. Duvall (1995) 9 Cal.4th 464, 475
(Duvall).) While it is true that legal arguments generally do not satisfy a party’s pleading
burden (see id. at p. 474), 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; see also 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”]). As we stated above, among other allegations, defendant
alleged that he was not a major participant who acted with reckless indifference to human
life, which was an “ultimate fact” pleaded in support of his legal argument that he could
not now be convicted of first or second degree murder under current law. (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; see also People v. McCall (2004)
32 Cal.4th 175, 182; People v. Nunez (2020) 57 Cal.App.5th 78, 89 [affirming the denial
of a section 1170.95 petition because the petitioner did not provide factual support for
the legal conclusion stated in his petition that he could not be convicted of murder under
current law by, for example, “check[ing] box[] 5” on the form, which stated that
petitioner was not a major participant who acted with reckless indifference to human
life].) Here, given that defendant did allege the ultimate fact that he was not a major
participant who acted with reckless indifference to human life and that the district
attorney contended otherwise, there was a factual dispute below.
15
be said that there was sufficient evidence for the jury to find beyond a reasonable doubt
the defendant acted with reckless indifference as a major participant.” Despite
defendant’s allegations that he was not a major participant in the felony underlying the
murder and that he did not act with reckless indifference to human life, the superior court
concluded that “there is an abundance of solid, credible evidence such [that] the jury
would find beyond a reasonable doubt” that “defendant acted with reckless indifference
as a major participant,” and that “consequently [defendant] has not demonstrated that he
could not be convicted on that theory.” The superior court’s ruling was in error because
in reaching its decision, the court did not take defendant’s “ ‘ “factual allegations as true
and make[] a preliminary assessment regarding whether [he] would be entitled to relief if
his . . . factual allegations were proved.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.)
The superior court also weighed facts in the record. (Contra Lewis, supra, 11
Cal.5th at p. 972.) Defendant argued below that he was not a major participant who acted
with reckless indifference to human life based on record evidence that Gonzales “put the
shotgun on [Escobar’s] forehead and fired” after Escobar refused to give up his money
and that Escobar was killed “immediately.” Defendant asserted that there was no
evidence that he “was in a position just before the shooting to observe anything in
[Gonzales’s] actions . . . that would have indicated that [Gonzales] was likely to engage
in lethal violence at that time, and that [he] realistically had time to intervene and prevent
the killing. It appears that the shooting in this case occurred only seconds after [Escobar]
resisted [Gonzales’s] attempts . . . to take and carry away [Escobar’s] money. Nor is
there any evidence that once . . . Gonzales did the shooting, . . . [defendant] could have
done anything at that point. . . . [¶] [T]here is no evidence from which it reasonably can
be inferred . . . that he anticipated the potential for loss of human life beyond that usually
accompanying an armed robbery.” Defendant further asserted that “all the evidence
shows [the shooting] was a spur of the moment” decision by Gonzales and that “[t]here is
16
no evidence . . . that they were intending or thinking of hurting anybody” when defendant
and his coparticipants scoped out the scene and returned to commit the robbery.
The superior court rejected defendant’s argument, reaching its decision that
defendant was a major participant who acted with reckless indifference to human life
based on record evidence that Gonzales was well known to defendant; defendant planned
the robbery with Gonzales; defendant procured the gun he used to corral one or more of
the robbery victims so that they were together when Gonzales shot Escobar in the head;
and defendant fled from the crime scene rather than staying to assist.
In making these findings, the superior court weighed the evidence and made
credibility determinations to resolve the disputed issues of whether defendant was a
major participant in the underlying felony and whether he acted with reckless
indifference to human life. (See Drayton, supra, 47 Cal.App.5th at p. 982; see also
Banks, supra, 61 Cal.4th at p. 803 [discussing factors that “may be weighed” in
determining whether a defendant was a major participant in the underlying felony].)
However, “[i]n reviewing any part of the record of conviction at this preliminary
juncture, a [superior] court should not engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion.’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 972.)
While it may be possible to infer defendant’s role in the offense and his mens rea by
evaluating and weighing the facts as stated in the record of conviction, at the prima facie
stage the superior court was obligated to accept defendant’s allegations as true unless
they were conclusively refuted by the record of conviction. (See Lewis, supra, at p. 971;
People v. Barboza (2021) 68 Cal.App.5th 955, 965-966; Drayton, supra, at pp. 979-980.)
Because the allegations were not conclusively refuted by the record of conviction, the
superior court erred when it determined that defendant was a major participant who acted
with reckless indifference to human life. (See Drayton, supra, at p. 982.)
The district attorney contends that defendant’s “arguments as to why he was not a
major participant who acted with reckless indifference . . . do not appear to be factors that
17
a court would consider when making a determination as to whether someone is a major
participant who acted with reckless indifference.”
In Banks and Clark, the California Supreme Court discussed factors to consider
in determining whether a defendant was a major participant who acted with reckless
indifference to human life such that there is sufficient evidence to support a felony-
murder special circumstance finding. In Banks, the court held that to qualify as a major
participant, “a defendant’s personal involvement [in the underlying felony] must be
substantial,” and identified five factors relevant to that analysis. (Banks, supra, 61
Cal.4th at pp. 802, 803.) Factors to consider regarding whether a defendant was a major
participant are: (1) “What role did the defendant have in planning the criminal enterprise
that led to one or more deaths?”; (2) “What role did the defendant have in supplying or
using lethal weapons?”; (3) “What awareness did the defendant have of particular
dangers posed by the nature of the crime, weapons used, or past experience or conduct
of the other participants?”; (4) “Was the defendant present at the scene of the killing, in
a position to facilitate or prevent the actual murder, and did his or her own actions or
inaction play a particular role in the death?”; and (5) “What did the defendant do after
lethal force was used?” (Id. at p. 803, fn. omitted.)
In Clark, the court determined that reckless indifference to human life has “both
subjective and objective elements.” (Clark, supra, 63 Cal.4th at p. 617.) “The subjective
element is the defendant’s conscious disregard of [the grave] risks [of death] known to
him or her.” (Ibid.) As to the objective element, “ ‘[t]he risk [of death] must be of such a
nature and degree that, considering the nature and purpose of the actor’s conduct and the
circumstances known to him [or her], its disregard involves a gross deviation from the
standard of conduct that a law-abiding person would observe in the actor’s situation.’ ”
(Ibid.) Factors to consider are: (1) the defendant’s knowledge of weapons, the number
of weapons, and whether the defendant used a weapon; (2) the defendant’s physical
presence at the crime and opportunities to restrain the crime and/or aid the victim; (3) the
18
duration of the underlying felony; (4) the defendant’s knowledge of his or her cohort’s
likelihood of killing; and (5) the defendant’s efforts to minimize the risks of violence
during the underlying felony. (Id. at pp. 618-622.)
Defendant’s arguments below related both to whether he was a major participant
and whether he acted with reckless indifference. Specifically, regarding the major
participant determination, the arguments pertained to defendant’s “awareness . . . of
particular dangers posed by the nature of the crime, weapons used, or past experience or
conduct of the other participants,” whether he was “in a position to facilitate or prevent
the actual murder, and [whether] his . . . actions or inaction play[ed] a particular role in
the death.” (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.) Regarding reckless
indifference, the arguments pertained to defendant’s “opportunities to restrain the crime
and/or aid the victim” and his “knowledge of [his] cohort’s likelihood of killing.” (Clark,
supra, 63 Cal.4th at pp. 619, 621, capitalization and emphasis omitted.)
For these reasons, we conclude that the superior court erred when it denied the
petition because it failed to take “ ‘ “petitioner’s factual allegations as true” ’ ” and
“engage[d] in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Lewis, supra, 11 Cal.5th at pp. 971, 972.) Accordingly, we will reverse
the superior court’s order determining that defendant failed to establish a prima facie case
of entitlement to relief 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.
(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 following the hearing.
IV. DISPOSITION
The superior court’s order denying defendant’s Penal Code section 1170.95
petition 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 (Pen. Code, § 1170.95, subd. (d)).
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BAMATTRE-MANOUKIAN, J.
WE CONCUR:
ELIA, ACTING P.J.
DANNER, J.
People v. Soto
H047919