People v. Salamanca CA2/1

Filed 3/22/22 P. v. Salamanca CA2/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B300962
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA082067)
v.
GUMARO SALAMANCA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Allen J. Webster, Jr., Judge. Reversed and
remanded.
Tanya Dellaca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Blythe J. Leszkay, Deputy
Attorney General, for Plaintiff and Respondent.
___________________________________
A jury convicted Gumaro Salamanca of first degree murder,
attempted willful, deliberate and premeditated murder, and
shooting at an inhabited dwelling, and found true several firearm
and gang allegations. The trial court sentenced him to 50 years
to life in prison. We conditionally reversed the conviction.
(People v. Salamanca (Jan. 13, 2016, B254814) [nonpub. opn.].) In
that decision, we concluded that Salamanca’s “conviction for . . .
murder may have been [improperly] based on the . . . theory of
natural and probable consequences.”
In 2019, Salamanca filed a petition for resentencing under
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Penal Code section 1170.95. Relief under section 1170.95 was
available to an inmate convicted of murder under the natural and
probable consequences, aiding and abetting doctrine but not to “a
major participant in the underlying felony who acted with
reckless indifference to human life.” (See Stats. 2018, ch. 1015,
§ 1, subd. (f); People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
The trial court found Salamanca was ineligible for relief
because he was a “major participant” in the murder and directly
“aided and abetted because he was the one who drove not one
place, but three places where three different crimes occurred.”
The court therefore denied Salamanca’s petition without issuing
an order to show cause or holding an evidentiary hearing.
Salamanca appealed that order, arguing that with respect
to both his murder and attempted murder convictions, the court
erred in denying his petition without issuing an order to show
cause. We agreed as to his murder conviction but disagreed as to
his conviction for attempted murder because the plain language
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All undesignated statutory references will be to the Penal
Code.
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of section 1170.95, subdivision (a) limited relief to persons
“convicted of felony murder or murder under the natural and
probable consequences . . . theory.” No language in section
1170.95 mentioned relief to persons convicted of attempted
murder. Accordingly, we reversed the trial court’s order in part
but also affirmed it in part.
Because the applicability of section 1170.95 to petitioners
convicted of attempted murder was of statewide concern, our
Supreme Court granted review of the decision and put the case in
abeyance pending resolution of certain lead cases.
After our decision, the Legislature passed and the Governor
signed into law Senate Bill No. 775, which amended subdivision
(a) of section 1170.95 to permit relief for certain petitioners
convicted of “attempted murder under the natural and probable
consequences doctrine,” resolving an ongoing issue in the courts.
(Sen. Bill No. 775 (2020-2021 Reg. Sess.) at § 2.) The amended
section 1170.95, subdivision (a)(3), states that relief for
individuals convicted of attempted murder may be available if
they could not presently be convicted of murder or attempted
murder because of changes that Senate Bill No. 1437 made to
sections 188 and 189 in 2018. (Stats. 2018, ch. 1015, §§ 2-3.)
Where a section 1170.95 petitioner’s jury was instructed on
the natural and probable consequences theory of liability for
attempted murder, but the trial court summarily denied the
petition based on prior law, section 1170.95 now requires a
reviewing court to reverse the judgment and remand the matter
for further proceedings under subdivision (c). (People v. Montes
(2021) 71 Cal.App.5th 1001.)
Accordingly, on January 5, 2022, our Supreme Court
transferred the matter back to us with directions to vacate our
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decision and reconsider the cause in light of Senate Bill No. 775
(Stats. 2021, ch. 551). (People v. Salamanca (Jan. 5, 2022,
S269184) ___Cal.5th___ [2022 Cal. Lexis 71, at *1].)
Here, Respondent observes that the record reflects the jury
was instructed on the faulty natural and probable consequences
theory. Therefore, Respondent concedes, Salamanca is entitled to
further proceedings under section 1170.95, subdivision (c).
We agree, and therefore vacate our prior decision and
remand the matter for further proceedings pursuant to
subdivision (c) of section 1170.95.
DISPOSITION
Our prior decision is vacated, the trial court’s order is
reversed, and the matter remanded for further proceedings.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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