P. v. Nieblas

Filed 10/28/20 P. v. Nieblas 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.
REMIGIO NIEBLAS,
Defendant and Appellant.
B302488
(Los Angeles County
Super. Ct. No. BA360224)
APPEAL from an order of the Superior Court of
Los Angeles County, Lisa B. Lench, Judge. Affirmed.
Jeralyn Keller, 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, Charles S. Lee and Kathy S. Pomerantz,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________

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Defendant and appellant Remigio Nieblas challenges
the trial court’s denial of his petition under Penal Code
section 1170.951 for resentencing on his murder conviction. To
be eligible for relief under the statute, a defendant must make a
prima facie case that he was convicted either under the natural
and probable consequences doctrine, or of felony murder in a
case in which the defendant either was not a major participant in
the felony or did not act with reckless indifference to human life.
(See People v. Galvan (2020) 52 Cal.App.5th 1134, 1139–1140,
review granted Oct. 14, 2020, S264284.) Nieblas contends that
the record did not clearly refute his claim that he was convicted
of felony murder or under the natural and probable consequences
doctrine, and that the court erred by finding that he had failed
to make a prima facie case. We disagree and affirm. The
jury received no instructions on either natural and probable
consequences or felony murder, and Nieblas’s conviction therefore
could not have been based on either doctrine.
FACTUAL AND PROCEDURAL SUMMARY
In 2012, a jury convicted Nieblas of one count of first degree
murder (§ 187, subd. (a)), and found true an allegation that a
principal was armed with a firearm in the commission of the
murder. (§ 12022, subd. (a)(1).) The jury also convicted Nieblas’s
codefendant, Robert Padilla, of four counts of extortion. (§ 520.)
The court sentenced Nieblas to 25 years to life for murder, plus
one additional year for the firearm enhancement. In a prior
opinion in Nieblas’s direct appeal (People v. Nieblas (Dec. 31,
1 Subsequent statutory references are to the Penal Code.

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2013, B243851) [nonpub. opn.] (Nieblas)), we described the facts
of the case:
“Padilla and Freddy Juarez are members of the Indiana
Dukes criminal street gang. The prosecution’s theory at trial
was that Padilla and Juarez, acting on behalf of the Indiana
Dukes, extorted money from two employees of a smog check shop
as payment for the gang’s having killed the owner of the shop at
the request of Nieblas, also known as ‘Juero’ or ‘Guero.’ Nieblas
is not a member of the Indiana Dukes, but his cousin, Stella
Villa, is a member of the gang and is married to Padilla.
“Luis Hernandez was the true owner of the Nayarit Smog
Shop, but Hernandez had placed formal ownership of the shop
in the name of Nieblas, one of the shop’s employees. According
to Hernandez’s girlfriend, Hernandez put the shop in Nieblas’s
name so that Hernandez ‘could keep money away from his
estranged kids.’ The prosecution introduced evidence tending to
show that Nieblas was dissatisfied with the pay he was receiving
from Hernandez and that he sought to have members of the
Indiana Dukes street gang kill Hernandez, presumably so that
he (Nieblas) would then own the shop.
“Hernandez was shot to death on July 4, 2009. After
Hernandez’s death, Padilla and various associates began
stopping by the shop almost daily to speak with Nieblas. The
girlfriend of an employee of the smog shop testified that Nieblas
referred to Padilla and the other visitors as Nieblas’s ‘cousins.’
“On July 31, 2009, Padilla and Juarez arrived at the
shop accompanied by two women. Padilla told two of the shop’s
employees, Walter Ernesto Salguero and Michael Salazar, to
come into the shop’s office. When all four men were inside the
office, Padilla told Salguero and Salazar that they had to pay him

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$500 that day and $500 per week thereafter. Salguero and
Salazar recognized Padilla and Juarez as gang members and
feared for their safety if they did not pay.
“After Padilla and Juarez left, Nieblas spoke with Salazar
near the bay door of the shop. Nieblas was acting ‘nervous’
and ‘paranoid’ and was ‘looking around making sure no one
was around’ him and Salazar. Nieblas said he had ‘a big secret’
and told Salazar that Nieblas’s ‘cousins’ had killed Hernandez
and that ‘he [i.e., Nieblas] sent them’ to do it.” (Nieblas, supra,
B243851, at pp. 2–3.)
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished
the natural and probable consequences doctrine in cases of
murder, and limited the application of the felony murder
doctrine. (People v. Verdugo (2020) 44 Cal.App.5th 320, 323,
review granted Mar. 18, 2020, S260493 (Verdugo).) The
legislation also enacted section 1170.95, which established a
procedure for vacating murder convictions for defendants who
could no longer be convicted of murder because of the changes in
the law and resentencing those who were so convicted. (Stats.
2018, ch. 1015, § 4, pp. 6675–6677.)
Nieblas filed a petition for resentencing on January 18,
2019. The trial court appointed counsel to represent Nieblas,
obtained briefing from both sides, and denied the petition on the
ground that Nieblas had failed to make a prima facie case that he
was entitled to relief.

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DISCUSSION
A. Background on Section 1170.95
Section 1170.95 allows a defendant serving a sentence
for murder who could no longer be convicted of murder
because of changes in the law enacted in Senate Bill No. 1437
to petition for resentencing. To obtain relief, a defendant must
file a declaration affirming that he is eligible for resentencing
under the new law. (See § 1170.95, subd. (b)(1).) The trial court
considers the petition according to a three-step process. First,
the court “review[s] the petition and determine[s] if the petitioner
has made a prima facie showing that the petitioner falls within
the provisions of this section.” (§ 1170.95, subd. (c).) This is
“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 at this stage 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. (People v.
Lewis (2020) 43 Cal.App.5th 1128, 1137–1138, review granted
Mar. 18, 2020, S260598; Verdugo, supra, at pp. 329–330.)
If the petition survives this first stage of review, the
court must appoint counsel if the petitioner has so requested.
(§ 1170.95, subd. (c).) The prosecutor then files a response,
and the petitioner may file a reply. The review at this stage
“is equivalent to the familiar decision[-]making process before
issuance of an order to show cause in habeas corpus proceedings,

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which typically follows an informal response to the habeas corpus
petition by the Attorney General and a reply to the informal
response by the petitioner.” (Verdugo, supra, 44 Cal.App.5th
at p. 328, review granted Mar. 18, 2020, S260493.) Under this
standard, “[i]f the petitioner makes a prima facie showing that
he or she is entitled to relief, the court shall issue an order to
show cause.” (§ 1170.95, subd. (c).)
If the court issues an order to show cause, it must hold
a hearing within 60 days to determine whether to vacate the
murder conviction. (§ 1170.95, subd. (d)(1).) At this third and
final stage of the proceeding, the prosecution has the burden
of proving “beyond a reasonable doubt[ ] that the petitioner is
ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)
B. Nieblas Is Ineligible for Resentencing as a
Matter of Law
In this case, the trial court denied the petition at the
second stage of prima facie review. At this stage, the trial 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.’ [Citation.]”
(Verdugo, supra, 44 Cal.App.5th at p. 328, review granted
Mar. 18, 2020, S260493.) In making this determination, the
trial court may reject the defendant’s claims if they are refuted
as a matter of law in the record. (People v. Drayton (2020) 47
Cal.App.5th 965, 980; People v. Soto (2020) 51 Cal.App.5th 1043,
1054–1055 (Soto).)
The trial court denied Nieblas’s petition on the ground
that his “conviction for murder was not based on either felony
murder or natural and probable consequences theory.” Nieblas

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contends that this was error because the record is ambiguous as
to the nature of his conviction. According to Nieblas, the trial
court therefore could not reject his claim that he was entitled to
relief. We disagree. The jury instructions are part of the record
of conviction, and they may establish whether a petitioner has
made a prima facie case. (Soto, supra, 51 Cal.App.5th at p. 1055.)
In this case, the jury received no instruction on the natural and
probable consequences doctrine or felony murder. Thus, “under
the instructions, the jury necessarily found [Nieblas] culpable for
murder based on his own actions and mental state.” (Ibid.) The
jury must have found that Nieblas acted with the intent to kill
Hernandez. As a matter of law, Nieblas could still be convicted of
murder under the law as amended by Senate Bill No. 1437, and
the trial court did not err by denying his petition.
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.

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