P. v. Celaya

Filed 7/31/20 P. v. Celaya CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
NERIO CELAYA,
Defendant and Appellant.
B297652
(Los Angeles County
Super. Ct. No. PA066593)
APPEAL from an order of the Superior Court of
Los Angeles County, David B. Gelfound, Judge. Affirmed.
Deborah L. Hawkins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Zee Rodriguez and Paul S. Thies,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________

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Defendant and appellant Nerio Celaya (Celaya) challenges
the trial court’s summary denial of his petition under Penal
Code1 section 1170.95 for resentencing on his murder conviction.
He contends that the trial court erred by denying his petition
without appointing counsel to represent him. We disagree and
affirm. The jury’s finding of a torture special circumstance (see
§ 190.2, subd. (a)(18)) shows as a matter of law that Celaya acted
with the intent to kill the victim, and that he is not entitled to
resentencing.
FACTS AND PROCEEDINGS BELOW
A jury convicted Celaya, as well as his codefendant Louie
Mendoza (Mendoza), of one count of first degree murder (§ 187)
and one count of torture (§ 206) for the death of Mendoza’s
girlfriend, Lupe Fernandez (Fernandez). The jury also found
true as to both defendants a special circumstance allegation
that “[t]he murder was intentional and involved the infliction
of torture.” (§ 190.2, subd. (a)(18).) The trial court sentenced
both defendants to life in prison without the possibility of
parole for special-circumstance first degree murder, along with
an additional life sentence for torture, the latter of which was
stayed pursuant to section 654.
The following account of the facts of the case is derived
from this court’s opinion in the defendants’ direct appeals.
(See People v. Mendoza et al. (June 30, 2016, B256644, B260903)
[nonpub. opn.] (Mendoza).)
On January 12, 2010, Mendoza, Mendoza’s girlfriend
Fernandez, Mendoza’s brother Henry Morquecho (Morquecho),
1 Subsequent statutory references are to the Penal Code.

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and Mendoza’s cousin Celaya, gathered at a tattoo parlor that
Celaya owned in Arleta in the San Fernando Valley. Celaya
was wearing a black shirt. Mendoza had been living at the tattoo
parlor since he had a falling out with his mother, who no longer
allowed him to live at her house. Fernandez planned to spend
the night at the tattoo parlor with Mendoza. The four smoked
methamphetamine together at around 8:30 p.m., at which point
they were the only ones present at the tattoo parlor.
Morquecho realized that some valuable baseball cards that
he, Celaya, and Mendoza were planning to sell were missing.
Mendoza became convinced that his girlfriend, Fernandez, had
stolen the cards. According to Morquecho, Celaya and Mendoza
told Morquecho to buy some duct tape, rope, and a two-liter bottle
of soda. When Morquecho brought the items back to the shop,
Celaya told him to put gas in his sports utility vehicle and keep
watch nearby. Morquecho drove around the area of the tattoo
parlor all night.
At around 4:00 a.m., Celaya called Morquecho and told him
to come to the tattoo parlor and pick up Celaya and Mendoza.
When Morquecho arrived, he asked if Fernandez was coming,
and Mendoza answered, “Not unless she has nine lives.” Celaya
asked Morquecho to get some bleach and clothing for Celaya
and Mendoza. Celaya also said that he “needed to chop up
[Fernandez]’s body and put it in a trash can to get rid of it.
Celaya said ‘we’ had hit [Fernandez] wrong, and also said he hit
and choked her. Mendoza said she had been kicking a little and
she broke the glass. Celaya rubbed his hand, which was swollen
and had reddened knuckles.” (Mendoza, supra, B256644,
B260903, at p. 9.) Morquecho dropped Celaya and Mendoza off

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at Mendoza’s mother’s (and Celaya’s aunt’s) house a little later
that morning.
The same morning, Mendoza called his cousin, Cynthia
Chacon (Cynthia),2 and asked her to call Celaya, wake him up,
and ask him to bring two shovels to a house in the San Fernando
Valley. When Cynthia got off work that afternoon, she and her
roommate drove to the house. Cynthia called Celaya. He agreed
to bring the shovels and said he “ ‘knew what [Mendoza] was
talking about.’ ” (Mendoza, supra, B256644, B260903, at p. 3.)
When they arrived, Mendoza led Cynthia and Cynthia’s
roommate into the garage, where he pointed to a trash barrel
with a trash bag on top, and said Fernandez’s body was in it.
Mendoza said that he had killed Fernandez because she was
going to kill him, and that she had stolen the baseball cards.
Mendoza described beating Fernandez and “knocking out her
teeth ‘so they wouldn’t be able to identify her.’ ” (Mendoza,
supra, B256644, B260903, at p. 4.) When Cynthia stepped away,
Mendoza threatened to kill Cynthia’s roommate next. Cynthia
and her roommate fled and called the police.
Mendoza’s mother (and Celaya’s aunt), Elsa Chacon (Elsa),
testified at the preliminary hearing3 that at about 8:00 p.m.
on the day after the killing, Celaya came to Elsa’s house,
where Celaya had recently been staying. Celaya told Elsa that
Mendoza had killed Fernandez, and that he and Mendoza had
put Fernandez’s body in a trash barrel and driven the body to a
2 For clarity, we use the first names for family members
with the same last name, intending no disrespect.
3 Elsa died of natural causes prior to the trial, and the
court admitted her preliminary hearing testimony at trial.

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house in Sylmar. Celaya said that he had gone to a house that
Elsa was going to move into and jumped into the pool, believing
that the chlorine in the water would kill any DNA on his shoes
and clothing.
A criminalist tested a triple-extra-large sized black T-shirt
recovered from the tattoo shop and found that it contained DNA
from both Celaya and Fernandez, including Fernandez’s blood on
the collar and on the front of the shirt. At the time of Celaya’s
arrest a few weeks after the killing, Celaya was 5 feet 11 inches
tall and weighed 320 pounds.
At trial, the prosecution argued that Mendoza was the
primary attacker, and that Celaya was an aider and abettor who
participated in the killing. In his direct appeal, Celaya contended
that the evidence showed only that he was an accessory after
the fact, not that he aided and abetted in the murder. This
court rejected that argument and affirmed the judgment. (See
Mendoza, supra, B256644, B260903, at pp. 18–20.)
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which barred
most convictions for murder in cases in which the defendant
did not personally act with malice aforethought. (See People v.
Lopez (2019) 38 Cal.App.5th 1087, 1092–1093, review granted
Nov. 13, 2019, S258175 (Lopez).) The legislation also enacted
section 1170.95, which establishes a procedure for vacating
murder convictions for defendants who could no longer be
convicted of murder under the new law and resentencing
those who were so convicted. (Stats. 2018, ch. 1015, § 4,
pp. 6675–6677.)
Celaya filed a petition for resentencing on April 2, 2019.
The trial court summarily denied the petition on the ground

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that he was ineligible for resentencing because the jury’s special
circumstance finding showed as a matter of law that he acted
with the intent to kill.
DISCUSSION
Celaya contends that the trial court erred by denying his
petition for resentencing without appointing counsel to represent
him, which he argues violated both the terms of section 1170.95
and his constitutional right to an attorney and due process. We
disagree.
The court’s duty, upon receiving a petition under
section 1170.95, is to “review the petition and determine if the
petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section.” (§ 1170.95, subd. (c).)
Only if the court concludes that the petitioner has met this
requirement must the court appoint counsel.4 (People v. Verdugo
(2020) 44 Cal.App.5th 320, 332–333, review granted Mar. 18,
2020, S260493 (Verdugo); People v. Lewis (2020) 43 Cal.App.5th
1128, 1140, review granted Mar. 18, 2020, S260598 (Lewis).)
4 Because the retroactive relief provided by section 1170.95
represents an act of lenity by the Legislature, a petitioner has
no constitutional right to representation by counsel during
the proceedings. (Cf. People v. Anthony (2019) 32 Cal.App.5th
1102, 1156 [no right to jury trial in proceedings under Senate
Bill No. 1437 because its retroactive relief is “an act of lenity
that does not implicate defendants’ Sixth Amendment rights”],
citing People v. Perez (2018) 4 Cal.5th 1055, 1063–1064;
Pennsylvania v. Finley (1987) 481 U.S. 551, 555 [prisoners have
no constitutional right to counsel “when mounting collateral
attacks upon their convictions”].)

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At the first stage, prior to appointing counsel, the
court conducts “a preliminary review of statutory eligibility
for resentencing,” akin to an initial review of a petition for
resentencing under Propositions 36 and 47. (Verdugo,
supra, 44 Cal.App.5th at p. 329, review granted Mar. 18, 2020,
S260493.) “The court’s role . . . is simply to decide whether
the petitioner is ineligible for relief as a matter of law, making
all factual inferences in favor of the petitioner.” (Ibid.) In
making this decision, the trial court may consider the record
of conviction, including any prior appellate opinions in the
case. (Id. at pp. 329–330; Lewis, supra, 43 Cal.App.5th at
pp. 1137–1138, review granted Mar. 18, 2020, S260598.)
One of the requirements for resentencing is that “[t]he
petitioner could not be convicted of first or second degree murder
because of changes to Section[s] 188 or 189 made effective” as
part of Senate Bill No. 1437. (§ 1170.95, subd. (a)(3).) Senate
Bill No. 1437 made two primary alterations to the definition
of murder. First, the new law amended section 188 to require
proof of malice aforethought in almost all murder convictions.
(See § 188, subd. (a)(3).) The effect was to eliminate liability for
murder under the natural and probable consequences doctrine.
(Lopez, supra, 38 Cal.App.5th at pp. 1092–1093, review granted
Nov. 13, 2019, S258175.) The sole exception to the malice
requirement is in cases of felony murder, where the new law also
established stricter standards of liability. Under section 189,
subdivision (e), as newly amended, a defendant is not guilty
of felony murder unless he was the actual killer, acted with the
intent to kill in soliciting, requesting, or aiding and abetting
the murder, or was a major participant in the underlying felony

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who acted with reckless indifference to human life. (People v.
Lamoureux (2019) 42 Cal.App.5th 241, 247–248.)
Thus, in order to make a prima facie case that he falls
within the provisions of section 1170.95, a defendant must show
there is some possibility that he was convicted: (1) under the
natural and probable consequences doctrine, with no showing
that he acted with malice aforethought, or (2) under a theory of
felony murder in which he was not the actual killer, did not act
with the intent to kill, and was not a major participant in the
underlying felony who acted with reckless indifference to human
life. (See People v. Offley (2020) 48 Cal.App.5th 588, 595–597.)
Celaya has failed to meet either requirement. The jury
found true a special circumstance allegation that “[t]he murder
was intentional and involved the infliction of torture.” (§ 190.2,
subd. (a)(18).) In order for this special circumstance to apply,
the jury must have found beyond a reasonable doubt at a
minimum that Celaya “with the intent to kill, aid[ed], abet[ted],
counsel[ed], command[ed], induce[d], solicit[ed], request[ed],
or assist[ed] [Mendoza] in the commission of murder in the first
degree.” (§ 190.2, subd. (c).) This means that the jury necessarily
found that Celaya acted with express malice, which is defined
as the “deliberate intention to unlawfully take away the life
of a fellow creature.” (§ 188, subd. (a)(1); accord, People v.
Beltran (2013) 56 Cal.4th 935, 941–942.) Thus, the record
of conviction shows as a matter of law that Celaya could still
be convicted of murder under the new law, and that he was
therefore ineligible for resentencing under section 1170.95.
The trial court did not err by summarily denying the petition.
Celaya attempts to escape this conclusion by claiming
that the trial court instructed the jury incorrectly regarding

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the mens rea required for aiding and abetting. He also claims
that there was evidence that he was not present at the time
Fernandez was killed and could have been no more than an
accessory after the fact. The proper occasion to raise these
issues was on direct appeal. Celaya did not challenge the jury
instructions then, nor does he explain why not. He did challenge
the sufficiency of the evidence, and this court rejected that claim.
Section 1170.95, subdivision (d)(3) provides an avenue for the
petitioner and prosecutor to introduce new evidence at the final
eligibility hearing. But that provision applies only after the
defendant has made a prima facie showing that he is entitled
to relief. Section 1170.95 does not provide a vehicle for all
defendants convicted of murder to revisit every factual or legal
issue that was decided against them.
Celaya also argues that the special circumstance finding
may be invalid in light of the Supreme Court’s decisions in
People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016)
63 Cal.4th 522. In those cases, the Supreme Court clarified the
requirements for a defendant to be deemed a “major participant”
in a felony who acts with “reckless indifference to human life,”
pursuant to section 190.2, subdivision (d). A defendant who
met that standard may be subject to a felony-murder special
circumstance even if the defendant was not the actual killer
and did not act with the intent to kill. Courts have disagreed
as to whether a defendant with a pre-Banks and Clark
felony-murder special circumstance may nevertheless be eligible
for resentencing under section 1170.95. (Compare People v.
Smith (2020) 49 Cal.App.5th 85, 95, review granted July 22,
2020, S262835 and People v. Torres (2020) 46 Cal.App.5th
1168, 1179, review granted June 24, 2020, S262011 [special

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circumstance does not bar defendant from resentencing] with
People v. Gomez (June 29, 2020, D076101) ___ Cal.App.5th ___
[2020 WL 3960294] [the proper venue to challenge a special
circumstance finding is in a petition for habeas corpus, not a
section 1170.95 petition].) The controversy regarding Banks and
Clark is not relevant to this case, however, because the jury
found a special circumstance on the basis of torture, not felony
murder. The torture-murder special circumstance requires proof
that the defendant acted with the intent to kill. (People v.
Pearson (2012) 53 Cal.4th 306, 322.)
Because the record of conviction showed as a matter
of law that Celaya was not eligible for resentencing, the trial
court did not err by denying his petition. (See Verdugo, supra,
44 Cal.App.5th at p. 329, review granted Mar. 18, 2020, S260493;
Lewis, supra, 43 Cal.App.5th at p. 1140, fn. 10, review granted
Mar. 18, 2020, S260598.)

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DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
SINANIAN, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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