P. v. Quintana

Filed 8/11/20 P. v. Quintana CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID QUINTANA,
Defendant and Appellant.
B299286
(Los Angeles County
Super. Ct. No. BA357016)
APPEAL from an order of the Superior Court of Los
Angeles County. Douglas Sortino, Judge. Affirmed.
Victor J. Morse, 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 Nicholas J. Webster,
Deputy Attorneys General for Plaintiff and Respondent.
_________________________

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A jury found appellant David Quintana guilty of second
degree murder and found true various gang and firearm
allegations. The trial court sentenced appellant to 15 years to life
on the second degree murder conviction and imposed a
consecutive term of 25 years to life on the firearm enhancement.
The court stayed any term for the gang enhancement. In a prior
consolidated appeal, we affirmed the judgment of conviction.
(People v. Frias (Jan. 8, 2013, B232987) [nonpub. opn.].)
Our prior opinion affirming appellant’s conviction describes
the evidence presented at trial, which we found sufficient to
support the jury’s verdict. A bicyclist rode up to a man standing
at a bus stop, fired a gun, and killed him. After the shooting the
gunman rode the bicycle to a pick-up truck. He threw the bicycle
into the bed of the truck and entered the passenger side of the
truck. The truck then drove off. Appellant subsequently told a
detective that he had driven the truck that day but did not know
his passenger had been the gunman until after the shooting.
Three eyewitnesses testified there were two persons involved in
the crime – the shooter and the driver of the truck. Two of those
eyewitnesses also identified appellant as one of those persons
involved in the shooting, although they identified him as the
shooter, not the driver. Both appellant and his co-defendant,
Frias, were members of the same gang. The shooter flashed a
gang sign at one of the eyewitnesses as he left the scene in the
truck.
On April 2, 2019, appellant filed a petition in propria
persona requesting resentencing pursuant to newly enacted
Penal Code section 1170.95. Appellant’s petition asserted he had
been convicted of murder under the theory of felony murder and
the doctrine of natural and probable consequences. He also

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requested appointment of counsel. On May 16, 2019, the People
filed a written opposition. That same day, the trial court denied
the petition, concluding appellant was not entitled to relief. The
trial also denied appellant’s request for appointment of counsel.
In denying both requests, the trial court stated: “It is a
bare bones petition filed by him. It appears to be made on a form
provided by some website. It just has boxes that are checked. [¶]
The court has reviewed the court file, including the verdict forms,
the jury instructions that were used in this case. The court has
also reviewed the Court of Appeal opinion from several years ago
when the conviction was first obtained, affirming his conviction.
[¶] The People have filed an opposition to a finding of a prima
facie case. [¶] . . . [¶] The court will deny the petition.”
The trial court also stated: “[Appellant] was convicted of
second degree murder. His co-defendant, Mr. Frias, was
convicted of willful, deliberate and premeditated first degree
murder. The jury was instructed at the trial on aiding and
abetting. [¶] The People’s theory of the case was that
[appellant], as far as I can tell, was . . . the getaway driver on
what was essentially a walk-up gang shooting. In terms of
establishing his liability as an aider and abettor, the jury was not
instructed on natural and probable consequences; they were
instructed on a straight aiding and abetting theory, where the
aider and abettor would have to have the intent of the killer to be
guilty or liable of a murder, which means the jury had to find he
had an intent to kill when he aided and abetted Mr. Frias in the
murder of Mr. Macial.
“So there was no natural and probable consequence theory
that was advanced in this case by the prosecution. There was no
natural and probable consequences instruction that was provided

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by the court to the jury. The only way that [appellant], as an
aider and abettor, could have been found guilty in this case was if
the jury had determined he had an intent to kill, which
apparently they did when they returned a verdict of guilty on
second degree murder.”
I. Denial of Appointment of Counsel
First, appellant contends the trial court erred in summarily
denying his resentencing petition without appointing counsel
because he presented a prima facie case for relief. Appellant
argues the court’s summary denial is at odds with the statutory
language and legislative history and violates his federal and state
constitutional rights. He further argues his due process rights
were violated by the court’s summary denial of his motion to
dismiss without the appointment of counsel.
We disagree. “When we interpret statutes, giving effect to
legislative purpose is the touchstone of our mission.” (People v.
Valencia (2017) 3 Cal.5th 347, 409.) “The text of the statute is
integral to our understanding of the statute’s purpose.” (Ibid.)
“We must take ‘the language . . . as it was passed into law, and
[we] must, if possible without doing violence to the language and
spirit of the law, interpret it so as to harmonize and give effect to
all its provisions.’ ” (Id. at pp. 409–410.)
Penal Code section 1170.95 was enacted as part of the
legislative changes effected by Senate Bill No. 1437. “Senate
Bill 1437 was enacted 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,

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ch. 1015, § 1, subd. (f).)” (People v. Martinez (2019)
31 Cal.App.5th 719, 723.)
Penal Code section 1170.95, subdivision (c) provides, in
plain language, that 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.” The
statute thus contemplates an initial eligibility determination by
the court. Appellant argues the trial court cannot look beyond
the allegations in the resentencing petition and must in all cases
accept them as true and appoint counsel. This cannot be so.
Allegations in a resentencing petition may be erroneous. Where
the record of conviction precludes any reasonable factual dispute
over defendant’s ineligibility for relief, it would be a waste of
judicial resources to require appointment of counsel and briefing.
Several courts have similarly interpreted the statutory
language and have concluded that a defendant seeking
resentencing is entitled to appointment of counsel only after
demonstrating a prima facie case. (See e.g., People v. Tarkington
(2020) 49 Cal.App.5th 892, 899–900; People v. Verdugo (2020)
44 Cal.App.5th 320, 328–332, review granted Mar. 18, 2020,
S260493; People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review
granted Mar. 18, 2020, S260410; People v. Lewis (2020)
43 Cal.App.5th 1128, 1139–1140, review granted Mar. 18, 2020,
S260598.) We adopt the persuasive analyses in these decisions.
Penal Code section 1170.95, subdivision (a) provides that
only persons “convicted of felony murder or murder under a
natural and probable consequences theory” may file a petition
seeking resentencing. Appellant was not convicted on a theory of
felony murder or under the natural and probable consequences
doctrine. He was convicted of second degree murder as an aider

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and abettor to co-defendant Frias, which makes appellant
ineligible for relief as a matter of law. The jury was instructed
with CALCRIM 400 and CALCRIM 401, both of which describe
and define aiding and abetting. Appellant failed to make a prima
facie showing of eligibility for relief under the statute.
Accordingly, he was not entitled to appointment of counsel,
which, we hold, is mandatory only after the court has determined
that a prima facie showing has been or can be made.
Appellant also argues denial of appointment of counsel
violates his federal and state constitutional rights. We are not
persuaded. A sentence modification is not a criminal trial; it is
an act of lenity. (See Dillon v. United States (2010) 560 U.S. 817,
826–828 [no Sixth Amendment right to a jury trial in statutory
proceeding to modify a sentence because the statute constituted
an act of lenity].) When a state need not provide a given right
under the federal constitution, “it follows that the erroneous
denial of that right does not implicate the federal Constitution.”
(People v. Epps (2001) 25 Cal.4th 19, 28–29.) Here we find Penal
Code section 1170.95 is an act of lenity. If the trial court acted
erroneously in declining to appoint counsel, that error does not
constitute a violation of appellant’s constitutional rights.
II. Review of the Preliminary Hearing Transcript
Second, appellant argues the trial court erred in basing its
denial of the petition on the preliminary hearing transcript. Not
so. First, the trial court expressly stated it had read the jury
instructions, the verdict forms, and the opinion of this court
affirming appellant’s conviction, an opinion which discussed the
evidence and rejected his challenge to the sufficiency of the
evidence in support the conviction. All of these documents
support denial of the petition. If the trial court read the

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preliminary hearing transcript as well, that transcript is part of
the record of conviction along with the opinion affirming the
judgment. (People v. Reed (1996) 13 Cal.4th 217, 223
[preliminary hearing transcript is part of the record of
conviction]; People v. Woodell (1998) 17 Cal.4th 448, 451
[appellate record and opinion are part of the record of
conviction].) We agree with People v. Lewis and People v.
Cornelius, supra, that the trial court acted correctly in relying on
the record of conviction, including the preliminary hearing
transcript. We also find our prior consolidated opinion especially
relevant where, as here, it expressly sustained the sufficiency of
the evidence to support the conviction for second degree murder.
DISPOSITION
The order denying the petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur.
GRIMES, Acting P.J.
WILEY, J.

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