P. v. Duran

Filed 7/16/20 P. v. Duran CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ELVIN MAREL DURAN,
Defendant and Appellant.
B298071
(Los Angeles County
Super. Ct. No. BA068055)
APPEAL from an order of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Marta I. Stanton, 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, Amanda V. Lopez and Charles J. Sarosy,
Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found Elvin Marel Duran guilty of second degree
murder with a finding that he personally used a firearm. Years
later, he petitioned for resentencing under Penal Code1
section 1170.95. The trial court summarily denied the petition
without appointing counsel for Duran. He appeals, contending he
was entitled to have counsel appointed. We reject that
contention.
BACKGROUND2
In August 1992, the victim Walter Belloso accused Duran of
owing him money. Demanding payment, Belloso broke a window
on Duran’s car and then hit him. Duran crossed the street,
retrieved a gun from his car, walked back to Belloso and shot him
to death as Belloso was getting into his car. At trial, Duran
claimed to have shot Belloso because he was scared. Based on
this evidence, a jury found Duran guilty of second degree murder
with a finding he personally used a firearm under
section 12022.5, subdivision (a). The trial court sentenced him to
19 years to life in prison. Our Division affirmed the judgment of
conviction, rejecting Duran’s sole substantive contention he was
entitled to instruction on involuntary manslaughter. (People v.
Duran, supra, B085503, at pp. 4–5.)
Thereafter, our Legislature passed Senate Bill No. 1437
(2017–2018 Reg. Sess.), which took effect January 1, 2019. That
bill amended the felony-murder rule and eliminated the natural
1 All further statutory references are to the Penal Code.
2 The background is from our Division’s opinion affirming
Duran’s judgment of conviction. (People v. Duran (Nov. 22, 1995,
B085503) [nonpub. opn.].) The motion for judicial notice filed on
October 29, 2019 is granted.

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and probable consequences doctrine as it relates to murder, all to
the end of ensuring that a person’s sentence is commensurate
with the person’s criminal culpability. Based on that new law, a
person convicted of murder under a felony murder or natural and
probable consequences theory may petition the sentencing court
for vacation of the conviction and resentencing, if certain
conditions are met.
Duran petitioned for resentencing under section 1170.95.
In his form petition, Duran checked boxes indicating: (1) a
complaint, information or indictment had been filed against him
that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine, (2) he was convicted of first or second degree murder
under one of those doctrines, and (3) he could not now be
convicted of first or second degree murder because of changes to
sections 188 and 189. Duran also checked boxes to indicate he
was not the actual killer and to request that the court appoint
counsel for him during the resentencing process.
The trial court summarily denied the petition without
appointing counsel for Duran. The trial court found that Duran’s
claims he was not the actual killer and was convicted under a
felony murder or natural and probable consequences doctrines to
be belied by the facts at trial, as stated in this Division’s opinion
affirming the judgment of conviction.
DISCUSSION
Duran’s sole contention is the trial court violated his
federal constitutional rights by failing to appoint counsel for him.
He interprets section 1170.95 to require appointment of counsel
whenever a petition contains the basic averments required by
subdivision (b) of section 1170.95—even if the record of conviction

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establishes that those averments are untrue.3 As we now
explain, our principal task in interpreting a statute is to
determine legislative intent and to give effect to the law’s
purpose. (See People v. Verdugo (2020) 44 Cal.App.5th 320, 328,
fn. 8 (Verdugo), review granted Mar. 18, 2020, S260493.) Our
task leads us to conclude that the trial court properly denied the
petition.
Under Senate Bill No. 1437, malice may no longer be
imputed to a person based solely on the person’s participation in
the crime; now, the person must have acted with malice
aforethought to be convicted of murder. (§ 188; People v. Munoz
(2019) 39 Cal.App.5th 738, 749, review granted Nov. 26, 2019,
S258234.) To that end, the natural and probable consequences
doctrine no longer applies to murder. And, a participant in
enumerated crimes is liable under the felony-murder doctrine
only if the participant was the actual killer; or with the intent to
kill, aided and abetted the actual killer in commission of first
degree murder; or was a major participant in the underlying
felony and acted with reckless indifference to human life. (§ 189,
subd. (e); see Munoz, at pp. 749–750.)
Senate Bill No. 1437 also added section 1170.95. “Pursuant
to subdivision (a) only individuals who meet three conditions are
eligible for relief: (1) the person must have been charged with
3 This issue is currently on review in People v. Lewis (2020)
43 Cal.App.5th 1128, review granted March 18, 2020, S260598.
Specifically, the Supreme Court is considering whether superior
courts may consider the record of conviction in determining
whether a defendant has made a prima facie showing of
eligibility for relief under section 1170.95 and when the right to
appointed counsel arises under subdivision (c) of that section.

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murder ‘under a theory of felony murder or murder under the
natural and probable consequences doctrine,’ (2) convicted of first
or second degree murder, and (3) can no longer be convicted of
first or second degree murder ‘because of changes to Section 188
or 189 made effective January 1, 2019.’ ” (People v. Drayton
(2020) 47 Cal.App.5th 965, 973.)
Courts of appeal have interpreted section 1170.95 to
provide for multiple reviews of a petition by the trial court.
(People v. Tarkington (2020) 49 Cal.App.5th 892; People v.
Drayton, supra, 47 Cal.App.5th at p. 974; People v. Cornelius
(2020) 44 Cal.App.5th 54, 57–58, review granted Mar. 18, 2020,
S260410; Verdugo, supra, 44 Cal.App.5th at p. 328.) Subdivision
(b) of section 1170.95 describes an initial review to determine the
facial sufficiency of the petition. (Verdugo, at p. 328.) To be
facially sufficient, the petition must contain the petitioner’s
declaration that the petitioner is eligible for relief according to
the criteria in subdivision (a), the case number and year of
conviction, and whether the petitioner is requesting appointment
of counsel. (§ 1170.95, subd. (b)(1).) If the petition is missing any
of this information “and cannot be readily ascertained by the
court, the court may deny the petition without prejudice.”
(§ 1170.95, subd. (b)(2).) This initial review amounts essentially
to a ministerial review to ensure merely that the right boxes are
checked.
Subdivision (c) of section 1170.95 then describes the next
two levels of review. It provides, “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

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file and serve a response within 60 days of service of the petition
and the petitioner may file and serve a reply within 30 days after
the prosecutor response is served. These deadlines shall be
extended for good cause. 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.”
The first sentence in subdivision (c) refers to a prebriefing,
initial prima facie review to preliminarily determine a
petitioner’s statutory eligibility for relief as a matter of law.
(Verdugo, supra, 44 Cal.App.5th at p. 329.) In this step of review,
the trial court determines, 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.
(Id. at pp. 329–330.) The court may review the complaint, the
information or indictment, the verdict form or the documentation
for a negotiated plea, and the abstract of judgment. (Ibid.) A
court of appeal opinion is part of the appellant’s record of
conviction. (Id. at p. 333.) If these documents reveal ineligibility
for relief, the trial court can dismiss the petition. (Id. at p. 330.)
If the record of conviction does not establish as a matter of
law the petitioner’s ineligibility for resentencing, evaluation of
the petition proceeds to the second prima facie review, in which
“the court must direct the prosecutor to file a response to the
petition, permit the petitioner (through appointed counsel if
requested) to file a reply and then determine, with the benefit of
the parties’ briefing and analysis, whether the petitioner has
made a prima facie showing he or she is entitled to relief.”
(Verdugo, supra, 44 Cal.App.5th at p. 330.) The trial court must
accept as true the petitioner’s factual allegations and make a
preliminary assessment regarding whether the petitioner would

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be entitled to relief if the factual allegations were proved. (Id. at
p. 328.)
We agree with those courts of appeal that interpret
section 1170.95 to permit a trial court to make an initial
determination whether the petitioner may be entitled to relief,
without first appointing counsel. The structure and grammar of
subdivision (c) of that section “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, italics
added; accord, People v. Lewis, supra, 43 Cal.App.5th at p. 1140.)
As Verdugo at pages 328 to 329 noted, to hold otherwise that
counsel must be appointed once a petitioner files a facially
sufficient petition renders subdivision (c) redundant to
subdivision (b)(2).
And, where a cursory review of the record of conviction
shows that the petitioner is not entitled to relief under Senate
Bill No. 1437, it “ ‘would be a gross misuse of judicial resources to
require the issuance of an order to show cause or even
appointment of counsel based solely on the allegations of the
petition, which frequently are erroneous.’ ” (People v. Lewis,
supra, 43 Cal.App.5th at p. 1138.) That is the case here. Per the
opinion in the direct appeal, the murder involved just two people:
the victim and Duran. This was not a situation in which multiple
persons carried out the attack. There was no dispute at trial that
Duran shot the victim, as Duran so testified. Also, the jury found
true a personal gun-use allegation. Senate Bill No. 1437 affords
no relief to actual killers.4
4 People v. Offley (2020) 48 Cal.App.5th 588, 598, held that
a true finding on a personal gun use allegation under

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As the actual killer, relief under section 1170.95 is
unavailable to Duran, and the trial court did not violate his
constitutional rights by summarily denying the petition without
appointing counsel.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
EDMON, P. J.
EGERTON, J.
section 12022.53, subdivision (d) does not establish that the
defendant acted with malice aforethought, and therefore the
defendant had established a prima facie case for relief under
Senate Bill No. 1437. Offley did not discuss that the natural and
probable consequences doctrine is a theory of vicarious liability
and, hence, inapplicable to actual killers.

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