P. v. Lainez

Filed 3/9/21 P. v. Lainez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
JACOB LAINEZ,
Defendant and Appellant.
B299431
(Los Angeles County
Super. Ct. No. BA432307)
APPEAL from an order of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed.
Athena Shudde, 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, Senior
Assistant Attorney General, Charles S. Lee and Gary A.
Lieberman, Deputy Attorneys General for Plaintiff and
Respondent.

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INTRODUCTION
Jacob Lainez appeals from an order summarily denying his
petition for resentencing under Penal Code section 1170.951 on
his first degree murder conviction. Lainez argues that his
petition stated a prima facie case for relief and that the superior
court erred in denying the petition without appointing counsel
and holding an evidentiary hearing. Because the record of
conviction establishes Lainez is not entitled to relief as a matter
of law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Lainez of Felony Murder
Lainez entered a medical marijuana dispensary with two
other men. The three men waited in the reception area while the
owner, Aran Sashoyan, helped another customer. When the
customer left through the security door, Lainez grabbed the door
and propped it open with a chair. One of the other men
approached Sashoyan and pointed a gun at him. When the
gunman and Sashoyan began to struggle, Lainez joined the fight.
Lainez tackled Sashoyan, kicked him, punched him in the head,
and then held him down while the gunman hit Sashoyan with his
gun. The third man robbed the store, taking cash and marijuana.
When the third man was finished, he tugged on the back of
Lainez’s shirt, signaling it was time to leave. Lainez, however,
continued to hold down Sashoyan, while the other man continued
to beat him. Eventually, Lainez got up and fled the dispensary.
The gunman shot Sashoyan twice in the head, killing him.
1 Statutory references are to the Penal Code.

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In June 2017 a jury convicted Lainez on one count of first
degree felony murder with the special circumstance finding he
was engaged in a robbery (§§ 187, subd. (a), 190.2, subd. (a)(17))
and one count of second degree robbery (§ 211). The trial court
sentenced Lainez to life in prison without the possibility of
parole, and we affirmed the judgment. (People v. Lainez (Apr. 9,
2018, B284080) [nonpub. opn.].)
B. Lainez Files a Petition for Resentencing
On May 6, 2019 Lainez, representing himself, filed a
petition for resentencing under section 1170.95 and asked the
court to appoint counsel. The superior court summarily denied
the petition, ruling “the jury was instructed re aiding and
abetting a robbery and aiding and abetting in terms of the special
circumstances.” The superior court observed that the trial court
instructed the jury consistent with the Supreme Court’s decision
in People v. Banks (2015) 61 Cal.4th 788 and that, in finding the
special circumstance allegation true, the jury had to find Lainez
either had the intent to kill or was a major participant in the
crime who acted with reckless indifference to human life. Based
on this record, the superior court concluded “the jury necessarily
found petitioner’s conduct was within the meaning of the 2019
amendment to Penal Code section 189[, subdivision] (e)(2) and/or
(e)(3).” Lainez appealed from the order summarily denying his
petition.2
2 Lainez’s attorney initially filed a brief raising no issues.
(See People v. Cole (2020) 52 Cal.App.5th 1023, 1040, review
granted Oct. 14, 2020, S264278; People v. Serrano (2012)
211 Cal.App.4th 496, 503.) We requested, and the parties filed,
supplemental briefing on the following issues: (1) May superior

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DISCUSSION
A. The Legislature Enacts Senate Bill No. 1437
and Establishes the Petition Procedure Under
Section 1170.95
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015, § 4), which became effective January 1, 2019,
eliminated the natural and probable consequences doctrine as a
basis for finding a defendant guilty of murder (People v. Gentile
(2020) 10 Cal.5th 830, 838-839) and significantly limited the
felony-murder exception to the malice requirement for murder.
(See §§ 188, subd. (a)(3), 189, subd. (e); see, e.g., People v.
Rodriguez (2020) 58 Cal.App.5th 227, 236, petn. for review
pending, petn. filed Jan. 15, 2021, S266652; People v. Bascomb
(2020) 55 Cal.App.5th 1077, 1080.) Senate Bill No. 1437 also
authorized, through new section 1170.95, a person convicted of
felony murder or murder under a natural and probable
consequences theory to petition the sentencing court to vacate the
conviction and for resentencing on any remaining counts if he or
she could not now be convicted of murder because of Senate Bill
No. 1437’s changes to the definition of the crime. (See Gentile, at
pp. 852-853; People v. Verdugo (2020) 44 Cal.App.5th 320,
326-327, review granted Mar. 18, 2020, S260493 (Verdugo).)
courts consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief
under section 1170.95? (2) When does the right to appointed
counsel arise under section 1170.95, subdivision (c)? The
Supreme Court granted review to decide these issues in People v.
Lewis (2020) 43 Cal.App.5th 1128, review granted March 18,
2020, S260598.

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If the petition contains all required information,
section 1170.95, subdivision (c), prescribes the process for
determining whether the court should issue an order to show
cause: “The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section. If the petitioner has
requested counsel, the court shall appoint counsel to represent
the petitioner. The prosecutor shall file and serve a response . . .
and the petitioner may file and serve a reply. . . . If the petitioner
makes a prima facie showing that he or she is entitled to relief,
the court shall issue an order to show cause.”
B. Lainez’s Interpretation of Section 1170.95,
Subdivision (c), Is Incorrect
Section 1170.95, subdivision (c), prescribes a two-step
review process for determining whether the court should issue an
order to show cause, “one made before any briefing to determine
whether the petitioner has made a prima facie showing he or she
falls within section 1170.95—that is, that the petitioner may be
eligible for relief—and a second after briefing by both sides to
determine whether the petitioner has made a prima facie
showing he or she is entitled to relief.” (Verdugo, supra,
44 Cal.App.5th at p. 328, review granted.) At the first step,
“because a petitioner is not eligible for relief under section
1170.95 unless he or she was convicted of first or second degree
murder based on a charging document that permitted the
prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine (§ 1170.95,
subd. (a)(1), (2)), the court must at least examine the complaint,
information or indictment filed against the petitioner; the verdict

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form or factual basis documentation for a negotiated plea; and
the abstract of judgment. Based on a threshold review of these
documents, the court can dismiss any petition filed by an
individual who was not actually convicted of first or second
degree murder. The record of conviction might also include other
information that establishes the petitioner is ineligible for relief
as a matter of law because he or she was convicted on a ground
that remains valid notwithstanding Senate Bill [No.] 1437’s
amendments to sections 188 and 189.” (Verdugo, at pp. 329-330.)
The court must appoint counsel if the court does not determine
the petitioner is ineligible for relief as a matter of law at this first
subdivision (c) prima facie review. (Id. at p. 332; see People v.
Lewis (2020) 43 Cal.App.5th 1128, 1140, review granted Mar. 18,
2020, S260598.)
Once the court issues an order to show cause, the court
must hold a hearing to determine whether to vacate the murder
conviction and to recall the sentence and resentence the
petitioner on any remaining counts. (§ 1170.95, subd. (d)(1); see
Verdugo, supra, 44 Cal.App.5th at p. 327, review granted.) At the
hearing the prosecution has the burden of proving beyond a
reasonable doubt the petitioner is ineligible for resentencing.
(§ 1170.95, subd. (d)(3); People v. Rodriguez, supra,
58 Cal.App.5th at p. 237, petn. for review pending; People v.
Lopez (2020) 56 Cal.App.5th 936, 949, review granted Feb. 10,
2021, S265974; but see People v. Duke (2020) 55 Cal.App.5th 113,
123, review granted Jan. 13, 2021, S265309.) The prosecutor and
the petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens. (See
People v. Tarkington (2020) 49 Cal.App.5th 892, 898-899, review

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granted Aug. 12, 2020, S263219; People v. Drayton (2020)
47 Cal.App.5th 965, 981.)
Lainez contends that, once the petitioner submits a facially
valid petition, the superior court must appoint counsel. Lainez
argues that his “petition stated a prima facie case showing he
falls within the provisions of [section 1170.95, subdivision (c)],
thereby triggering the trial court’s obligation to appoint counsel
and proceed in the manner directed by the subdivision. Nothing
in the subdivision authorizes a trial court, prior to the
appointment of counsel, to go [beyond] the face of a petition to
determine if it states a prima facie case of eligibility for relief.”
Lainez urges us to follow People v. Cooper (2020) 54 Cal.App.5th
106, review granted November 10, 2020, S264684, where the
court held: “We decline to adopt the view that section 1170.95(c)
requires two prima facie reviews—much less two reviews that are
substantively different—and entitles a petitioner to counsel
during only the second one. Rather, we read subdivision (c)’s first
sentence—‘The court shall review the petition and determine if
the petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section’—as a topic sentence
summarizing the trial court’s task before issuing an order to
show cause, and the following sentences to specify the procedure
in undertaking that task.” (Cooper, at p. 118.)
We do not read section 1170.95, subdivision (c) that way.3
As we explained in Verdugo: “The first sentence of section
3 “[O]ur analysis of the trial court’s order focuses on the trial
court’s interpretation of section 1170.95(c), and we therefore
review its order de novo.” (People v. Drayton, supra,
47 Cal.App.5th at p. 981; see ZB, N.A. v. Superior Court (2019)

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1170.95, subdivision (c), directs the court to review the petition
and determine if the petitioner has made the requisite prima
facie showing. The second sentence provides, if the petitioner has
requested counsel, the court must appoint counsel to represent
him or her. The third sentence requires the prosecutor to file and
serve a response to the petition within 60 days of service of the
petition and permits the petitioner to file a reply to the response.
The structure and grammar of this subdivision indicate the
Legislature intended to create a chronological sequence: first, a
prima facie showing; thereafter, appointment of counsel for
petitioner; then, briefing by the parties.” (Verdugo, supra,
44 Cal.App.5th at p. 332, review granted; accord, People v. Perez
(2020) 54 Cal.App.5th 896, 903, review granted Dec. 9, 2020,
S265254; People v. Nguyen (2020) 53 Cal.App.5th 1154, 1165;
People v. Torres (2020) 46 Cal.App.5th 1168, 1177, review
granted June 24, 2020, S262011.) Unless and until the Supreme
Court directs otherwise, we adhere to Verdugo and the cases that
have followed it.
C. The Superior Court Did Not Err in Examining the
Record of Conviction and Concluding Lainez Failed
To Make a Prima Facie Showing
In denying Lainez’s petition, the superior court examined
the record of conviction, including our prior opinion, and ruled
Lainez was ineligible for relief as a matter of law. Lainez
contends the superior court erred because the “clear language” of
section 1170.95, subdivision (c), “says nothing suggesting a trial
court is entitled to conduct a review beyond the face of the
8 Cal.5th 175, 188 [questions of statutory interpretation are
reviewed de novo].)

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petition and, by reference to extraneous information, decide the
validity of the petition.”
To make a prima facie showing under section 1170.95,
subdivision (a), the petitioner must show not only that he or she
was charged with, and convicted of, murder under a felony
murder or natural and probable consequences theory, but also
that he or she could not now be convicted of murder—that is, that
he or she could not be convicted of malice murder as defined in
section 188 or felony murder as now limited by section 189,
subdivision (e). As we held in Verdugo, after determining the
petition is facially sufficient and before appointing counsel, the
superior court may examine the readily available portions of the
record of conviction to determine whether the petitioner has
made this prima facie showing or whether, instead, the record of
conviction establishes, as a matter of law, that the petitioner
could still be convicted of first or second degree murder.
(Verdugo, supra, 44 Cal.App.5th at pp. 329-330, 332, review
granted; see People v. Tarkington, supra, 49 Cal.App.5th at p. 898
[“[t]he court must determine, based upon its review of readily
ascertainable information in the record of conviction and the
court file, whether the petitioner is statutorily eligible for relief
as a matter of law”], review granted; People v. Offley (2020)
48 Cal.App.5th 588, 597 [“[t]he trial court may examine the
record of conviction”].) A court of appeal opinion, “whether or not
published, is part of the appellant’s record of conviction.”
(Verdugo, at p. 333, review granted; see People v. Lewis, supra,
43 Cal.App.5th at p. 1136, fn. 7 [“[t]he record of conviction
includes a reviewing court’s opinion”], review granted.)
Based on an examination of Lainez’s record of conviction,
the superior court correctly ruled Lainez was not eligible for

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relief. The trial court at Lainez’s trial instructed the jury: “You
cannot find the special circumstance to be true unless you are
satisfied beyond a reasonable doubt that [Lainez] with the intent
to kill aided, abetted, or assisted any actor in the commission of
the murder in the first degree or with reckless indifference to
human life and as a major participant aided, abetted, or assisted
in the commission in the crime of robbery which resulted in the
death of a human being, namely Aran Sashoyan.” The trial court
also instructed the jury to consider, in determining whether
Lainez was a major participant, the six factors identified by the
Supreme Court in People v. Banks, supra, 61 Cal.4th 788 and, in
determining whether he acted with reckless indifference to
human life, whether he knew or was aware his acts involved “a
grave risk of death to an innocent human being.” Because the
jury found the special circumstance allegation true, Lainez could
still be convicted of murder under section 189, subdivision (e),
and therefore is not eligible for relief under section 1170.95.
DISPOSITION
The order denying Lainez’s petition for resentencing under
section 1170.95 is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.

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