P. v. Reyes

Filed 7/29/20 P. v. Reyes CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID ESPERANZA REYES,
Defendant and Appellant.
B298586
(Los Angeles County
Super. Ct. No.BA108837)
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 Ryan M. Smith, Deputy
Attorneys General, for Plaintiff and Respondent.

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Appellant David E. Reyes challenges the trial court’s
summary denial of his petition for resentencing under Penal
Code section 1170.95.1 Appellant argues that section 1170.95
gives rise to “special proceedings” in which the trial court “has
only the power to determine whether the statutory requirements
are met.” From that premise, he contends that the trial court
was required to appoint him counsel and afford him the
opportunity to file additional briefing because his petition stated
a prima facie case for relief. He further argues that the trial
court erred by looking beyond the petition to information in the
court file, and violated his constitutional rights to counsel and
due process. We find no error and affirm.
BACKGROUND2
I. Underlying Conviction
The following evidence was adduced at appellant’s murder
trial. On the evening of July 18, 1995, two witnesses observed
appellant interacting with his girlfriend, Avis Shevonne Roane,
in the hallway of a Los Angeles apartment building. Appellant
verbally insulted Roane and forced her into an apartment over
her protests. Approximately ten minutes later, the witnesses left
1All further statutory references are to the Penal Code
unless otherwise indicated.
2Both parties have cited to our nonpublished opinion
resolving appellant’s direct appeal, People v. Reyes (Nov. 14,
1997, No. B104195) [nonpub. opn.]. Neither has properly
requested judicial notice of the opinion. On our own motion, after
providing the parties an opportunity to present information
relevant to the propriety of taking judicial notice and the tenor
thereof, we take judicial notice of the opinion and draw the
background facts therefrom. (Evid. Code, §§ 452, subds. (a), (d),
459, subd. (a); Cal. Rules of Court, 8.1115(b).)

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the apartment building to go to the store. On their way
downstairs, they saw appellant and Roane in the stairwell.
Appellant again verbally insulted Roane, punched her in the face
twice with a closed fist, and ordered her to go upstairs.
Roane instead started to follow the witnesses downstairs.
Appellant then grabbed Roane and pulled up her shirt, exposing
her breasts, and pulled down her pants. Roane looked frightened
and tried to go down the stairs, but appellant blocked her way.
The witnesses watched appellant and Roane enter the stairway
that led to the fourth floor. The witnesses then left the building.
When the witnesses returned about ten minutes later, they
sat on a fourth-floor fire escape. About five minutes later,
appellant came out to the fire escape and told them, “The dumb
bitch jumped out the window.” The witnesses saw Roane’s body
lying on the ground.
A police officer who responded to the apartment building
found Roane lying on the ground and appellant holding her body.
Appellant was not cooperative and appeared to be under the
influence of alcohol or narcotics. The officer went to appellant’s
fourth floor apartment, where he found blood smears and a
broken television facedown on the floor. The officer interviewed
appellant’s neighbor, who said that he “heard the guy next door
beating the shit out of his girlfriend, [and] he could hear the
walls knocking.” The neighbor later denied making that
statement.
The medical examiner who performed the autopsy on
Roane found two types of injuries on her body: one set of injuries
was consistent with a fall from the window, and the other was
consistent with her being grabbed and choked. The medical
examiner opined that Roane was alive and possibly unconscious

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when she went out the window, and fell with her back facing the
ground. The immediate cause of her death was a head injury.
Appellant introduced evidence that the witnesses had been
drinking on the day of the incident. He also testified that Roane
had a history of erratic behavior and occasionally hit herself
against the wall. On the day of the incident, Roane wanted to
take a walk but appellant wanted to stay in and watch a movie.
Roane became angry and threw items at appellant and threw his
beer out the window before leaving the apartment. Appellant
took her back into the apartment; he conceded that he pulled
down her pants in the process. Once back in the apartment,
Roane knocked over the television and began hitting herself
against the wall. Appellant tried to stop her by embracing her
but had limited success. When appellant left Roane to go lock the
apartment door, he heard a crash and saw her going out the
window. An expert in psychiatry testified that Roane suffered
from schizoaffective disorder and depressive moods and had a
greater than one-in-six chance of committing suicide.
A jury convicted appellant of second degree murder.
(§§ 187, subd. (a), 189 subds. (a) & (b).) We affirmed his
conviction on direct appeal. As relevant here, we determined
that the record “discloses sufficient evidence to support a
conviction of second degree murder. There was credible
testimony that prior to Roane’s death, appellant struck Roane
and terrified her. Blood was found throughout appellant’s
apartment, and there were signs of a struggle. Finally, there was
expert testimony that Roane may have been unconscious when
she fell out the window, and that Roane’s injuries were consistent
with her having been choked and pushed from the apartment
window.”

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II. Petition for Resentencing
In 2018, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) (SB 1437), which “amend[ed] 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(f).) In addition to other
amendments discussed more fully below, SB 1437 added section
1170.95, which establishes a procedure by which individuals
convicted of murder under a felony murder theory or the natural
and probable consequences doctrine can seek vacation of those
convictions and resentencing. (Stats. 2018, ch. 1015, § 4, pp.
6675-6677; see also People v. Lewis (2020) 43 Cal.App.5th 1128,
1134, review granted March 18, 2020, No. S260598 (Lewis).)3
The provisions of SB 1437 became effective on January 1, 2019.
3The Supreme Court granted review in Lewis to consider
two issues: “(1) May superior courts consider the record of
conviction in determining whether a defendant has made a prima
facie showing of eligibility for relief under Penal Code section
1170.95? (2) When does the right to appointed counsel arise
under Penal Code section 1170.95, subdivision (c).” (Lewis,
supra, S260598) [2020 WL 1291847].) The Supreme Court also
granted review in People v. Cornelius (2020) 44 Cal.App.5th 54,
review granted March 18, 2020, No. S260410 (Cornelius) and
People v. Verdugo (2020) 44 Cal.App.5th 320, review granted
March 18, 2020, No. S260493 (Verdugo). The Court deferred
briefing in Cornelius and Verdugo pending its consideration and
disposition of Lewis or further order. (Cornelius, supra, S260410;
Verdugo, supra, S260493.)

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On April 4, 2019, appellant, in propria persona, filed a
petition asking the court to vacate his murder conviction and
resentence him pursuant to section 1170.95. On the form
petition, appellant checked a box affirming the statement, “A
complaint, information, or indictment was filed against me that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine.” Appellant also checked boxes affirming statements
asserting, “At trial, I was convicted of 1st or 2nd degree murder
pursuant to the felony murder rule or the natural and probable
consequences doctrine,” “I could not now be convicted of 1st or
2nd degree murder because of changes to Penal Code §§ 188 and
189, effective January 1, 2019,” “I was convicted of 2nd degree
murder under the natural and probable consequences doctrine or
under the 2nd degree felony murder doctrine and I could not now
be convicted of murder because of changes to Penal Code § 188,
effective January 1, 2019,” and “I request this court appoint
counsel for me during this re-sentencing process.”
Appellant also checked several boxes affirming statements
applicable only to petitioners seeking resentencing for convictions
of first degree felony murder: “I was not the actual killer,” “I was
not a major participant in the felony or I did not act with reckless
indifference to human life during the course of the crime or
felony,” and “The victim of the murder was not a peace officer in
the performance of his or her duties, or I was not aware that the
victim was a peace officer in the performance of his or her duties
and the circumstances were such that I should not reasonably
have been aware that the victim was a peace officer in the
performance of his or her duties.” In addition, he checked the box
asserting, “There has been a prior determination by a court or

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jury that I was not a major participant and/or did not act with
reckless indifference to human life under Penal Code § 190.2(d).
Therefore, I am entitled to be re-sentenced pursuant to
§ 1170.95(d)(2).”
The trial court denied appellant’s petition on April 15, 2019
without appointing counsel or holding a hearing on the petition.
The court issued a minute order stating: “Petition pursuant to
Penal Code section 1170.95, filed April 4, 2019, read and
considered. Petitioner was convicted of second degree murder on
June 25, 1996. The conviction was affirmed on November 14,
1997. Pursuant to the case file, the jury was never instructed on
first degree murder. The jury rejected the lesser included offense
of involuntary manslaughter. [¶] Petitioner was convicted as the
perpetrator in the crime. Instructions on aiding and abetting or
felony murder were not given. The only mental state instructed
was malice aforethought, express and implied. As such,
petitioner is not entitled to relief under Penal Code section
1170.95. [¶] Petition denied.”
Appellant timely appealed.
DISCUSSION
I. Legal Principles
The primary purpose of SB 1437 is to align a person’s
culpability for murder with his or her own actions and subjective
mens rea. (See Stats. 2018, ch. 1015, § 1, subd. (g).) To
effectuate that purpose, SB 1437 amended sections 188 and 189.
As amended, section 188, subdivision (a)(3) now provides that “in
order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.”

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(§ 188, subd. (a)(3).) Section 189 now provides that a participant
in qualifying felonies during which a death occurs generally will
not be liable for murder unless that person was (1) “the actual
killer,” (2) a direct aider and abettor in first degree murder, or (3)
“a major participant in the underlying felony [who] acted with
reckless indifference to human life.” (§ 189, subd. (e).)4
SB 1437 also added section 1170.95 to the Penal Code.
Section 1170.95 permits a person convicted of murder on a
charging document that allowed the prosecution to argue felony
murder or the natural and probable consequences doctrine to
petition the sentencing court to vacate the conviction and
resentence on any remaining counts if the person could not be
convicted of murder under sections 188 and 189 as amended by
SB 1437. (§ 1170.95, subd. (a).) A petition for relief under
section 1170.95 must include: “(A) A declaration by the petitioner
that he or she is eligible for relief under this section, based on all
the requirements of subdivision (a). [¶] (B) The superior court
case number and year of the petitioner’s conviction. [¶] (C)
Whether the petitioner requests the appointment of counsel.”
(§ 1170.95, subd. (b)(1).) If any of this information is missing
“and cannot be readily ascertained by the court,” the court may
deny the petition without prejudice. (§ 1170.95, subd. (b)(2).)
If the petition contains the required information, section
1170.95, subdivision (c) prescribes “a two-step process” for the
court to determine if it should issue an order to show cause.
4This limitation does not apply “when the victim is a peace
officer who was killed while in the course of the peace officer’s
duties, where the defendant knew or reasonably should have
known that the victim was a peace officer engaged in the
performance of the peace officer’s duties.” (§ 189, subd. (f).)

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(Verdugo, supra, 44 Cal.App.5th at p. 327.) First, the court must
“review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section.” (§ 1170.95, subd. (c).) If the petitioner has made
this initial prima facie showing, he or she is then entitled to
appointed counsel, if requested. (Ibid.; Verdugo, supra, at p. 328;
Lewis, supra, 43 Cal.App.5th at p. 1140.) The prosecutor must
file a response, and the petitioner may file a reply. (§ 1170.95,
subd. (c).) The court then reviews the petition a second time. If,
in light of the parties’ briefing, it concludes the petitioner has
made a prima facie showing that he or she is entitled to relief, it
must issue an order to show cause. (Ibid.; Verdugo, at p. 328;
Lewis, at p. 1140.)
“Once the order to show cause issues, 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.” (Verdugo, supra, 44 Cal.App.5th at 327,
citing § 1170.95, subd. (d)(1).) At the hearing, the parties may
rely on the record of conviction or present “new or additional
evidence” to support their positions. (§ 1170.95, subd. (d)(3).)
We independently review whether the trial court properly
interpreted and fulfilled its duty under the statute. (See Greene v.
Marin County Flood Control & Water Conservation Dist. (2010)
49 Cal.4th 277, 287 [questions of law are reviewed de novo]; cf.
Verdugo, supra, 44 Cal.App.5th at p. 328, fn. 8 [appellate court’s
principal task in interpreting a statute is to determine
Legislative intent and give effect to the law’s purpose].)
II. Analysis
Appellant contends that section 1170.95 gives rise to
“special proceedings” in which a trial court “has only the power to

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determine whether the statutory requirements are met.” His
position is that the trial court must accept as true the allegations
in a section 1170.95 petition, and has a ministerial duty to
appoint counsel, issue the order to show cause, and conduct a
hearing if the allegations meet the criteria of section 1170.95,
subdivisions (a) and (b). In other words, “if the petition alleges
facts that, if true, entitle the petitioner to resentencing, then the
trial court ‘shall issue an order to show cause’ and ‘shall appoint
counsel to represent the petitioner.’” Implicit in this argument is
that the trial court may not, as it did here, consult materials that
may contradict the petition’s allegations.
Every Court of Appeal to have considered the issue has
held that in determining whether a petitioner has made a prima
facie case for relief under section 1170.95, a trial court may look
to documents that are part of the record of conviction or are
otherwise in the court file. (See Verdugo, supra, 44 Cal.App.5th
at 329 [documents in court file or record of conviction should be
available to trial court in connection with first prima facie
determination under subd. (c)]; Lewis, supra, 43 Cal.App.5th at
1138 [trial court may summarily deny petition without briefing or
appointment of counsel if court file shows petitioner was
convicted of murder without instruction or argument based on
felony-murder rule or natural and probable consequences
doctrine]; Cornelius, supra, 44 Cal.App.5th at pp. 57-58
[affirming summary denial of petition based on verdict, trial
transcript, and prior appeal].) We agree with the analyses of our
sister courts and reject appellant’s contention that these cases
were wrongly decided.
In Verdugo, the Court of Appeal observed that section
1170.95, subdivision (b)(2) allows a court to consider readily

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ascertainable documents that are in the court file or otherwise
part of the record of conviction to ensure the petition meets the
requirements of subdivision (b)(1). (Verdugo, supra, 44
Cal.App.5th at p. 329.) It reasoned that those same documents
“should similarly be available to the court in connection with the
first prima facie determination required by subdivision (c).”
(Ibid.) We agree. A trial court evaluating whether a petitioner
has made a prima facie showing in a section 1170.95 petition is
not required to accept his or her allegations at face value, and
may also examine the record of conviction. (Lewis, supra, 43
Cal.App.5th at p. 1138; Verdugo, supra, 44 Cal.App.5th at pp.
329-330.) However, the contents of the record of conviction defeat
a prima facie showing only when the record “show[s] as a matter
of law that the petitioner is not eligible for relief.” (Lewis, at p.
1138; Verdugo, at p. 330; see also Cornelius, supra, 44
Cal.App.5th at p. 58.)
Following Verdugo, Lewis, and Cornelius, we look to the
record of conviction in the case to evaluate appellant’s petition. It
indicates that appellant was the sole principal and was found to
have acted with malice aforethought. No facts support
application of the felony murder theory or the natural and
probable consequences doctrine. Appellant was tried as the sole
direct perpetrator; there is no indication, even from his own
testimony, that he may have aided and abetted another
perpetrator. (See People v. Chiu (2014) 59 Cal.4th 155, 165-166.)
The trial court correctly concluded that appellant is ineligible for
relief under section 1170.95 as a matter of law.
Appellant also claims he was entitled to appointed counsel
without regard to the veracity of his allegations. We reject his
assertion. Section 1170.95 does not mandate the appointment of

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counsel during the initial “screening” phase, but only after the
trial court has determined the petition sets forth a prima facie
case. (See Lewis, supra, 43 Cal.App.5th at p. 1140; Verdugo,
supra, 44 Cal.App.5th at pp. 332-333; Cornelius, supra, 44
Cal.App.5th at p. 58 [rejecting claim that petitioner was entitled
to appointed counsel where he was indisputably ineligible for
relief under section 1170.95].)
We further reject appellant’s assertion that the trial court’s
summary denial of his petition violated his federal constitutional
right to counsel under the Sixth Amendment. Appellant had no
constitutional right to counsel at this stage of a section 1170.95
proceeding. The retroactive relief afforded by section 1170.95
reflects an act of lenity by the Legislature and is not subject to
Sixth Amendment analysis. (Cf. People v. Anthony (2019) 32
Cal.App.5th 1102, 1156 [no right to jury trial in proceedings
under SB 1437 because its retroactive relief is “an act of lenity
that does not implicate defendants’ Sixth Amendment rights”],
citing People v. Perez (2018) 4 Cal.5th 1055, 1063-1064;
Pennsylvania v. Finley (1987) 481 U.S. 551, 555 [prisoners have
no constitutional right to counsel “when mounting collateral
attacks upon their convictions”].)
Finally, appellant claims that the summary denial of his
petition violated his procedural due process rights because it
deprived him of procedures to which he was entitled under
section 1170.95. As discussed above, however, the trial court
acted in accordance with section 1170.95’s procedures when it
consulted the court file and summarily denied appellant’s
petition. Appellant has therefore suffered no due process
violation.

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DISPOSITION
The order denying appellant’s petition under section
1170.95 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.

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