P. v. Chavez

Filed 2/23/21 P. v. Chavez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.
JERRY A. CHAVEZ,
Defendant and Appellant.
B306079
(Los Angeles County
Super. Ct. No. KA074077)
APPEAL from an order of the Superior Court of
Los Angeles County, Mike Camacho, Judge. Affirmed.
Allen G. Weinberg, 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, Scott A. Taryle and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________

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Defendant and appellant Jerry A. Chavez challenges
the trial court’s denial of his petition under Penal Code
section 1170.951 for resentencing on his murder conviction.
He argues that the trial court erred by denying his petition
without first appointing counsel to represent him. We disagree
and affirm. If the record of a defendant’s conviction shows as a
matter of law that the defendant is ineligible for resentencing,
the trial court may summarily deny the petition without
appointing counsel. (See People v. Verdugo (2020) 44 Cal.App.5th
320, 329, 332–333, review granted Mar. 18, 2020, S260493
(Verdugo).) In this case, the record of conviction shows that
Chavez is ineligible because he killed the victim, and the trial
court correctly denied the petition.
FACTUAL AND PROCEDURAL SUMMARY
In 2007, a jury convicted Chavez of one count of second
degree murder (§ 187, subd. (a)), and one count of possession
of a firearm by a felon (former § 12021, subd. (a)(1)). The jury
also found that Chavez personally and intentionally discharged
a firearm proximately causing great bodily injury and death
(§ 12022.53, subd. (d)), among other enhancements. The trial
court imposed an aggregate sentence of 62 years to life in prison.
In a prior opinion in Chavez’s direct appeal (People v. Chavez
(June 2, 2008, B199018) [nonpub. opn.] (Chavez)), we described
the facts of the case:
“At approximately midnight on January 15, 2006, Monique
Betancourt arrived at the Top Ten Motel with her four children.
1 Subsequent unspecified statutory references are to the
Penal Code.

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Paul Reyes, who was the father of two of Betancourt’s children
and the stepfather of the other two, arrived shortly thereafter.
Reyes pointed out to Betancourt that Chavez was at the hotel,
and, while Betancourt unloaded Reyes’ car, Chavez and Reyes
had a verbal confrontation. Betancourt could not hear what they
were talking about, but Chavez’s girlfriend, Patricia Montano,
testified that she was present and heard Reyes tell Chavez ‘that
he was going to take him out’ and that ‘it was his time.’ Montano
further testified that she saw the butt of a gun in Reyes’ pocket
and that she told Chavez to ‘be careful’ because Reyes had
‘something in his pocket.’
“Reyes then accompanied Betancourt to their room to sleep.
In his interview with the police, Chavez stated that he too went
to his room but then left the hotel, ‘got a hold of a gun,’ and ‘came
back.’ He said the gun was a ‘Glock .40.’
“Betancourt testified that about 45 minutes after she and
Reyes had gone to sleep, Chavez knocked at their door. Reyes
dressed and went downstairs with Chavez. Moments later,
Betancourt heard multiple gunshots and ran downstairs, where
she found Reyes ‘lying there’ and Chavez running back to his car.
Betancourt first chased after Chavez but then returned to Reyes’
side, where she watched him die.
“Police investigators found approximately nine .40–caliber
Smith and Wesson expended shell casings near Reyes’ body. The
medical examiner who performed the autopsy on Reyes identified
six gunshot wounds, at least two of which would have been fatal
on their own because of the extensive damage they caused to
major organs—one went through Reyes’ heart and one lung, and
another went through his spleen and both kidneys. Other shots

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went through his arms, legs, and pelvis. The police found no
weapons on Reyes’ body or at the crime scene.
“In his interview with the police, a transcript of which
was introduced at trial, Chavez admitted having shot Reyes but
claimed that he acted in self-defense. He claimed that both in
their verbal confrontation at the motel and on previous occasions,
Reyes had ‘pumped fear into’ him. He said that when he went
to Reyes’ room at the motel, his ‘intention was’ just ‘to go talk
to him,’ and that he had the gun with him in case he needed to
use it ‘in defense.’ After he knocked on Reyes’ door and the two
of them went downstairs, Reyes ‘come at me, you know what I
mean? The way he was coming up, walking up real quick. And
I said—I just—I turned around and I just—I let him have it.’
“Chavez did not testify at trial, but his fiancé[e], Corie
Vargas, testified that she was present on two previous occasions
when Reyes acted in an aggressive or threatening manner
toward Chavez. On one of those occasions, Reyes was yelling
at Chavez and had a gun in his hand.” (Chavez, supra, B199018,
at pp. 3–4.)
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. (See People v. Gentile (2020) 10 Cal.5th 830, 842–843
(Gentile).) 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.)

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Chavez filed a petition for resentencing on March 23, 2020.
The trial court summarily denied the petition, finding that
Chavez was ineligible for relief as a matter of law because “the
court file reflects that [Chavez] was the actual killer and was not
convicted under a theory of felony-murder of any degree, or a
theory of natural and probable consequences.”
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
must then determine whether the defendant has made a prima
facie case for resentencing under section 1170.95, subdivision (c).
As we described in People v. Lewis (2020) 43 Cal.App.5th 1128,
1139–1140, review granted Mar. 18, 2020, S260598 (Lewis), this
is a two-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

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of conviction, including any prior appellate opinions in the case.
(Lewis, supra, at pp. 1137–1138; Verdugo, supra, at pp. 329–330.)
If the trial court does not deny the petition at this point,
“the court shall appoint counsel to represent the petitioner”
(§ 1170.95, subd. (c)) for the second stage of prima facie review.
The prosecutor then files a response, and the petitioner may file
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.” (Ibid.) 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, 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.)
B. The Trial Court Did Not Err by Denying the
Petition without Appointing Counsel
Chavez contends that Lewis and Verdugo erred by dividing
the prima facie review under section 1170.95, subdivision (c),
as described above, into two separate phases, and holding
that the trial court may deny a defendant’s petition at the first
stage without appointing counsel. According to Chavez, there
is instead only a single phase of review under section 1170.95,
subdivision (c). Under this interpretation, in every case where
the defendant submits a facially sufficient petition, the trial court
is required to appoint counsel and obtain briefing before it may
deny a petition.
We disagree. The court in Verdugo summarized our
position well: “The structure and grammar of [section 1170.95,
subdivision (c)] indicate the Legislature intended to create a

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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 Mar. 18, 2020, S260493.) We stand by our reasoning in
Lewis, supra, 43 Cal.App.5th at pp. 1139–1140, review granted
Mar. 18, 2020, S260598, and we are not persuaded by Chavez’s
arguments to the contrary.2
In this case, the trial court correctly denied the petition
because Chavez is ineligible for relief as a matter of law. To be
eligible for resentencing, a defendant must show that he “could
not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective” as a part of Senate
Bill No. 1437 (§ 1170.95, subd. (a)(3)). Senate Bill No. 1437
amended section 188 to eliminate murder liability under the
natural and probable consequences doctrine, and amended
section 189 to limit felony murder liability to cases in which
the defendant was the actual killer, acted with the intent to kill,
or was a major participant in the underlying felony and acted
2 We acknowledge that our colleagues in the First District
reached the opposite conclusion in People v. Cooper (2020)
54 Cal.App.5th 106, 123, review granted Nov. 10, 2020, S264684
and People v. Daniel (2020) 57 Cal.App.5th 666, 673–674, and we
respectfully disagree. Even those cases, however, acknowledged
that where the record of conviction shows as a matter of law that
the defendant is ineligible, the error in denying a defendant’s
petition is harmless. (See People v. Cooper, supra, at p. 123;
People v. Daniel, supra, at pp. 675–676.) Thus, even under
Cooper and Daniel, the trial court’s denial of Chavez’s petition
would be affirmed because, as we explain below, the record in
this case shows as a matter of law that Chavez is ineligible for
resentencing.

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with reckless indifference to human life. (See Gentile, supra,
10 Cal.5th at pp. 842–843.)
The record shows unequivocally that Chavez could not have
been convicted under a theory affected by Senate Bill No. 1437,
and Chavez himself does not argue otherwise. The jury at
Chavez’s trial received no instructions on either the natural and
probable consequences doctrine or felony murder. Thus, “under
the instructions, the jury necessarily found [Chavez] culpable
for murder based on his own actions and mental state,” and
not based on the natural and probable consequences doctrine.
(People v. Soto (2020) 51 Cal.App.5th 1043, 1055.) Moreover,
the opinion in Chavez’s direct appeal shows that Chavez acted
alone, and the jury found that he personally and intentionally
fired the gun and caused the victim’s death. Because the record
of conviction shows as a matter of law that Chavez killed Reyes
with malice aforethought, the trial court did not err by denying
the petition at the first stage of review without appointing
counsel.

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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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