P. v. Pelayo

Filed 11/12/20 P. v. Pelayo CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
SAUL PELAYO,
Defendant and Appellant.
B303425
(Los Angeles County
Super. Ct. No. PA021870)
APPEAL from an order of the Superior Court of
Los Angeles County, David W. Stuart, Judge. Affirmed.
Jean Ballantine, 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 Christopher G. Sanchez,
Deputy Attorneys General, for Plaintiff and Respondent.

-- 1 of 11 --

2
Appellant Saul Pelayo shot a relative three times in front of
family members, following an argument. He was convicted in
1999 of second degree murder and sentenced to 15 years to life,
plus 10 years for using a firearm. (Pen. Code, §§ 187, subd. (a),
12022.5, subd. (a).)1 This court affirmed the judgment in People
v. Pelayo (Oct. 4, 2000, B137409) [nonpub. opn.] (Pelayo I).
In 2019, appellant requested resentencing. (§ 1170.95.)
The trial court appointed counsel for him. After considering the
record of conviction and the parties’ arguments, the court found
appellant ineligible for relief as a matter of law. We agree.
Appellant intentionally killed the victim, with malice. Under
current law, he could be convicted of murder. We affirm.
FACTS AND PROCEDURAL HISTORY2
Background
On October 31, 1995, appellant shot and killed his uncle,
Rosalio Pelayo (Rosalio), outside the home of Irinea Pelayo
(Irinea). A week before the shooting, appellant showed a shotgun
to his uncle Juan Pelayo (Juan) and his cousin Mark, saying he
planned to use it to collect debts. Appellant stored the gun
behind a dresser in Irinea’s home. (Pelayo I, supra, B137409.)
Rosalio and his brother Pedro were at Irinea’s home while
in town on a construction project. Rosalio accused appellant of
laziness and the two tussled; Rosalio slapped appellant and
——————————————————————————————
1 Undesignated statutory references are to the Penal Code.
2 The trial court took judicial notice of Pelayo I, supra,
B137409. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
Appellant’s petition recites verbatim the facts set forth in
Pelayo I.

-- 2 of 11 --

3
caused a split lip. Juan told them to calm down. Pedro saw
Rosalio poke a knife at appellant. (Pelayo I, supra, B137409.)
Rosalio and Pedro began to pack their things to leave
Irinea’s house. Rosalio went to his truck, parked out front, to
place food and tools in it. Pedro was on the doorstep when he
heard Rosalio say, “ ‘If you have enough balls, then go ahead and
shoot.’ ” Pedro heard a gunshot, then the sound of another round
being chambered. (Pelayo I, supra, B137409.)
Pedro saw appellant pointing a shotgun at Rosalio, who
was facing his truck with his back to appellant. Appellant fired
two more shots. After the second shot, Pedro called to appellant,
telling him not to shoot. (Pelayo I, supra, B137409.)
Juan heard three shots and went outside. He saw
appellant holding a shotgun and Rosalio lying on the ground.
Appellant appeared nervous and shaken. Juan refused
appellant’s request to help him escape. Appellant took his
weapon and left. Juan collected the shotgun shells and threw
them in the neighbor’s trash. Mark heard the gunshots, checked
behind the dresser, and saw that appellant’s shotgun was gone.
(Pelayo I, supra, B137409.)
Rosalio died from gunshot wounds to his head, shoulder,
and elbow. He had drugs and alcohol in his system and a folded
knife in his pocket. No weapons were found in his truck.
(Pelayo I, supra, B137409.)
Appellant was arrested two years after the shooting. He
waived his rights and spoke to police in a taped interview. He
described a fight with Rosalio that occurred a week before the
shooting, when Rosalio took appellant’s eyeglasses. Appellant
defended himself by punching and kicking Rosalio. Rosalio told

-- 3 of 11 --

4
appellant he would “get” him; appellant feared Rosalio as a drug
user who knew martial arts. (Pelayo I, supra, B137409.)
Appellant said he went to Irinea’s house on October 31 to
get his eyeglasses from Rosalio. He, Juan, Mark, and a friend
brought a shotgun to frighten or “get” Rosalio before he got
appellant. Rosalio and appellant argued. Appellant asked for his
eyeglasses. Rosalio said he had destroyed them and punched
appellant in the face. Juan grabbed Rosalio, who held a knife
with a three-inch blade to appellant’s stomach. Juan brought out
the shotgun and threatened to shoot Rosalio. Rosalio began
carrying his possessions to his truck and said, “I’m gonna get
you.” (Pelayo I, supra, B137409.)
Appellant went outside. When Rosalio looked into the back
of his truck, appellant was afraid he might pull out a gun. Juan
gave appellant the shotgun and urged him to shoot Rosalio.
Rosalio said, “You don’t got the guts to pull the trigger.”
Appellant was angry and not thinking. He decided to shoot
Rosalio because “I figured either his life or my life. And I figure
also . . . all his kids are grown up [and] everything you know.
Everybody is making it and I’m just starting. I still haven’t had a
wife, kids, nothing.” Appellant shot Rosalio from a distance of 12
to 15 feet. Rosalio initially laughed. Appellant shot him two
more times. After the last shot, Rosalio fell saying, “You got me.”
Appellant said a prayer for Rosalio. (Pelayo I, supra, B137409.)
Appellant told police he left the scene of the shooting and
went to the home of a cousin, Carlos Saavedra. When Saavedra
asked why he shot his uncle, appellant said he did not know and
“wasn’t thinking right.” He went to Mexico and got married. He
knew police were looking for him. (Pelayo I, supra, B137409.)

-- 4 of 11 --

5
At trial, appellant testified and denied shooting Rosalio.
He claimed he left Irinea’s house before the shooting because
Rosalio was angry and threatening. Appellant went to
Saavedra’s house and later learned from Juan that Rosalio was
shot. Appellant did not contact police to say he was innocent nor
did he have Saavedra provide an alibi by telling police appellant
was at his home at the time of the shooting. Appellant testified
that he lied to police about shooting Rosalio because Juan
threatened him and he feared Juan. He did not report Juan’s
threats. (Pelayo I, supra, B137409.)
On rebuttal, Juan, Pedro, and Mark testified that no one
threatened appellant or participated in a plan to falsely accuse
appellant of shooting Rosalio. Juan denied giving appellant the
gun or telling him to shoot Rosalio. (Pelayo I, supra, B137409.)
Appellant was convicted by jury of second degree murder
with personal use of a firearm and sentenced to 15 years to life in
prison, with a 10-year firearm use enhancement. (Pelayo I,
supra, B137409.)
The Resentencing Petition
In May 2019, appellant petitioned in propria persona for
resentencing, alleging that he was convicted of felony murder.
He recited the facts from Pelayo I, supra, B137409. In opposition,
the People asserted that he is ineligible for relief. The public
defender appointed for appellant argued that he is entitled to an
evidentiary hearing at which the People must prove ineligibility
beyond a reasonable doubt.
At the hearing on appellant’s petition, the People argued
that appellant “was the actual killer, so he is ineligible for relief
under the terms of the statute.” Appellant’s counsel replied that
“the prosecution has the burden of proof beyond a reasonable

-- 5 of 11 --

6
doubt under [section] 189, sub[division] (e), subsection (1), to
prove that up at [a] hearing.”
The court said, “I am going to find that the defendant is not
eligible for the relief requested. Based on the facts of the case . . .
he was the actual shooter [and] there is no accomplice liability
presented to the jury or felony murder.” It denied the petition.
DISCUSSION
The 2018 Murder and Resentencing Laws
In 2018, the Legislature amended the murder statutes and
authorized resentencing for past convictions. The statute reads:
“It is necessary to amend the felony-murder rule and the natural
and probable consequences doctrine, as it relates to murder, 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 in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, §1,
subd. (f).)
The petition must show that the criminal charge allowed
the prosecutor to proceed under a felony-murder theory or the
natural and probable consequences doctrine; the petitioner was
convicted of murder at trial or accepted a plea in lieu of trial; and
he could not now be convicted of murder because of changes to
the murder statutes. (§ 1170.95, subd. (a)(1)–(3).)
The court must “determine if the petitioner has made a
prima facie showing that [he] falls within the provisions of this
section.” (§ 1170.95, subd. (c).) To conserve judicial resources,
the court may examine the conviction record to determine if the
petitioner falls within the provisions of section 1170.95 as a

-- 6 of 11 --

7
matter of law. (People v. Verdugo (2020) 44 Cal.App.5th 320, 323,
328–330, review granted Mar. 18, 2020, S260493.)3
Pelayo Is Ineligible for Resentencing
The facts set forth in appellant’s petition, from Pelayo I,
show his ineligibility. “Our opinion in his direct appeal, which
described the evidence presented at trial, demonstrates that the
murder involved a single perpetrator, [appellant]; it was not a
situation in which multiple persons carried out the attack.”
(People v. Tarkington (2020) 49 Cal.App.5th 892, 899, review
granted Aug. 12, 2020, S263219.) The jury found he personally
used a firearm to commit the murder. (§§ 187, subd. (a), 12022.5,
subd. (a).) As stated in Pelayo I, supra, B137409, “The evidence
here utterly fails to establish a lack of intent to kill.”
Appellant “was not convicted of felony murder or murder as
an aider or abettor under a natural and probable consequences
theory. [Citation.] The jury convicted him of second degree
murder and found true that he personally and intentionally used
a firearm to commit the crime. Thus, the jury implicitly found
[he] was the ‘actual killer,’ and the changes to sections 188 and
189 are inapplicable.” (People v. Cornelius (2020) 44 Cal.App.5th
54, 58, review granted Mar. 18, 2020, S260410.) As a result, “he
is indisputably ineligible for relief.” (Ibid.; People v. Tarkington,
supra, 49 Cal.App.5th at p. 899, rev.gr.)
——————————————————————————————
3 We recognize that the Supreme Court intends to address
whether the trial court may consider the record of conviction to
determine if a petitioner has made a prima facie showing of
eligibility. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1137,
review granted Mar. 18, 2020, S260598.)

-- 7 of 11 --

8
The Felony-Murder Rule Did Not Apply
Appellant argues that he is eligible for resentencing
because jurors may have convicted him of felony murder. The
jury was instructed with CALJIC No. 8.10, which cited “assault
with a firearm” as the underlying felony. (§ 245, subd. (a)(2).)4
As we shall explain, the felony-murder rule did not apply to
appellant as a matter of law.
Under the merger doctrine, “the underlying felony must be
an independent crime and not merely the killing itself. Thus,
certain underlying felonies ‘merge’ with the homicide and cannot
be used for purposes of felony murder.” (People v. Chun (2009) 45
Cal.4th 1172, 1189 (Chun).) Assault with a firearm merges with
a murder charge. In People v. Ireland (1969) 70 Cal.2d 522, the
defendant shot and killed his wife. The jury was instructed on
felony murder; assault with a deadly weapon was the purported
underlying felony. The Supreme Court held that the instruction
violated the merger doctrine. “[A] second degree felony-murder
instruction may not properly be given when it is based upon a
felony which is an integral part of the homicide and which the
evidence produced by the prosecution shows to be an offense
included in fact within the offense charged.” (Id. at pp. 539–540.)
——————————————————————————————
4 At the parties’ request, we take judicial notice of the jury
instructions. CALJIC No. 8.10 reads: “[Defendant is accused of
having committed the crime of murder, a violation of Penal Code
section 187.] [¶] . . . [¶] In order to prove this crime, each of the
following elements must be proved: [¶] 1. A human being was
killed; [¶] 2. The killing was unlawful; and [¶] 3. The killing
[was done with malice aforethought] [or] [occurred during the
commission or attempted commission of] [a felony inherently
dangerous to human life. Assault [with a] firearm is a felony
inherently dangerous to human life.]” (Italics added.)

-- 8 of 11 --

9
In short, “When the underlying felony is assaultive in
nature . . . the felony merges with the homicide and cannot be the
basis of a felony-murder instruction. An ‘assaultive’ felony is one
that involves a threat of immediate violent injury. [Citation.] In
determining whether a crime merges, the court looks to its
elements and not the facts of the case.” (Chun, supra, 45 Cal.4th
at p. 1200.) Appellant could not be convicted of felony murder.
Under People v. Ireland, supra, 70 Cal.2d 522, assault with a
firearm merged into the homicide. It was not an independent
felony supporting a felony-murder finding.
Giving a Felony-Murder Instruction Was Harmless Error
The error in instructing on felony murder (which was not
raised in Pelayo I, supra, B137409) was immaterial. Any juror
who relied on the felony-murder rule necessarily found appellant
committed “a felony inherently dangerous to human life.”
(CALJIC No. 8.10.) “The willingness to commit a felony
inherently dangerous to life is a circumstance showing an
abandoned and malignant heart.” (Chun, supra, 45 Cal.4th at
pp. 1187–1188.)
No juror could have found that appellant committed this
shooting “without also finding [he] committed an act that is
dangerous to life and did so knowing of the danger and with
conscious disregard for life—which is a valid theory of malice. In
other words, on this evidence, no juror could find felony murder
without also finding conscious-disregard-for-life malice. The
error in instructing the jury on felony murder was, by itself,
harmless beyond a reasonable doubt.” (Chun, supra, 45 Cal.4th
at p. 1205.)

-- 9 of 11 --

10
The jury was instructed on—and rejected—voluntary
manslaughter.5 CALJIC No. 8.50 was given: “The distinction
between murder and manslaughter is that murder requires
malice while manslaughter does not” and “malice, which is an
essential element of murder, is absent” for manslaughter.
Further, “If you are convinced beyond a reasonable doubt and
unanimously agree that the killing was unlawful, but you
unanimously agree that you have a reasonable doubt whether the
crime is murder or manslaughter, you must give the defendant
the benefit of that doubt and find it to be manslaughter rather
than murder.”
If the jury had found that appellant lacked malice, it had to
convict him of manslaughter. By rejecting manslaughter, the
jury by necessity found that he killed the victim with malice.
Although the jury was instructed on self-defense, this theory was
also rejected.6 Appellant did not claim self-defense: He
contended that he was not present at the shooting.
——————————————————————————————
5 CALJIC No. 8.37 instructed jurors: “The crime of
manslaughter is the unlawful killing of a human being without
malice aforethought.” CALJIC No. 8.40 was given: “Every
person who unlawfully kills another human being without malice
aforethought but with an intent to kill is guilty of voluntary
manslaughter in violation of Penal Code Section 192(a). There is
no malice aforethought if the killing occurred [upon a sudden
quarrel or heat of passion] [or] [in the actual but unreasonable
belief in the necessity to defend oneself against imminent peril to
life or great bodily injury.]”
6 CALJIC No. 5.17 was given, which stated that a
defendant “is not guilty of murder” if he kills another without
malice, in the actual but unreasonable belief it was necessary to
defend against imminent peril to life or great bodily injury.

-- 10 of 11 --

11
The jury believed the prosecution witnesses, who testified
that appellant deliberately fired three shotgun blasts, one at the
unarmed victim’s head, despite pleas to stop. Appellant does not
qualify for resentencing under section 1170.95. Absent a prima
facie showing of eligibility, the trial court correctly rejected
appellant’s contention that an evidentiary hearing is required to
retry the jury’s determination that he was the actual killer. “The
purpose of section 1170.95 is to give defendants the benefit of
amended sections 188 and 189 with respect to issues not
previously determined, not to provide a do-over on factual
disputes that have already been resolved.” (People v. Allison
(2020) 55 Cal.App.5th 449, 461.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.

-- 11 of 11 --