P. v. Celis

Filed 12/7/20 P. v. Celis 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
VICTOR CELIS,
Defendant and Appellant.
B301850
Los Angeles County
Super. Ct. No. PA039478
APPEAL from an order of the Superior Court of Los
Angeles County, Cynthia L. Ulfig, Judge. Affirmed.
Jonathan E. Demson, 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, Senior
Attorney General, Idan Ivri and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437),
effective January 1, 2019, amended the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder. Under Penal Code section 1170.95,1 a person
who was convicted under theories of felony murder or murder
under the natural and probable consequences doctrine, and who
could not be convicted of murder following the enactment of SB
1437, may petition the sentencing court to vacate the conviction
and resentence on any remaining counts.
A jury convicted defendant and appellant Victor Celis of
second degree murder. (§ 187, subd. (a).) In 2019, Celis filed a
petition for resentencing under section 1170.95 in the trial court.
The court denied the motion, concluding SB 1437 and section
1170.95 are unconstitutional. Celis appeals the court’s order,
arguing the court erred in concluding SB 1437 and section
1170.95 are unconstitutional. Although we agree SB 1437 and
section 1170.95 are constitutional, we conclude Celis is ineligible
for relief as a matter of law. We therefore affirm the denial of his
petition.
PROCEDURAL BACKGROUND
In 2002, the Los Angeles County District Attorney filed an
information charging Celis with murder (§ 187, subd. (a)) and
various gun use and gang allegations. A jury convicted him of
1 All undesignated statutory references are to the Penal
Code.

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second degree murder and found a principal personally and
intentionally discharged a firearm (§ 12022.53, subds. (c), (d), &
(e)(1)), a principal personally used a firearm (§ 12022.53, subds.
(b) & (e)(1)), and the murder was committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)). The trial court
sentenced him to 25 years to life in state prison.
In 2019, Celis filed a petition for resentencing under section
1170.95. In the petition, Celis checked the boxes indicating an
information was filed against him that allowed the prosecution to
proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine; at trial, he was
convicted of first or second degree murder under the felony-
murder rule or the natural and probable consequences doctrine;
and he could not now be convicted of first or second degree
murder because of the changes in homicide law. Celis requested
that counsel be appointed on his behalf. As noted above, the trial
court denied the petition on the ground that SB 1437 and section
1170.95 are unconstitutional.
Celis timely appealed.
FACTUAL BACKGROUND2
“After leaving Kennedy High School, on September 13,
2001, Carlos Salinas, Nicole Pena, Ricky Lloyd, and Frank
Menendez were walking down the street. Lloyd and Menendez
walked into a parking lot, and Pena and Salinas continued
walking to a Taco Bell Restaurant. When Salinas saw a red car
2 The following statement of facts is taken from our opinion
in case number B162968, filed April 12, 2004, resolving Celis’s
direct appeal.

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drive up, he felt ‘like something would happen’ and just kept on
walking. Salinas then heard the passenger say, ‘his hood’s
Pacoima’ and ‘Fuck San Fernando[,]’ and Menendez say, ‘Santos.’
The passenger then got out of the red car with a weapon that
looked like a rifle, loaded it, and started shooting. Lloyd and
Menendez ran, but when Lloyd tried to climb a wall, he slipped
and the shooter shot him. It appeared the shooter reloaded his
weapon, aimed the rifle at Lloyd’s head, and fired again. The
shooter kicked Lloyd and said ‘Pacoima’ and then got into the car
and left. Salinas identified [Celis] as the driver of the car. Lloyd
died from a single gunshot wound to the head.
“Just before the shooter got back into the car, the driver
said something like, ‘Hurry Up.’ Salinas did not remember
exactly what was said, but understood the words to mean, ‘Let’s
get out of here.’ After the shooter got back into the car, the car
drove off. Salinas estimated that this all happened within a short
period of time, less than a minute.
“Several other people witnessed the shooting and their
testimony relative to the event was in essence the same. Jimmy
Lopez testified before the shooting, the red car made a U-turn
and stopped. After the passenger shot Lloyd twice, the car ‘came
around’ and stopped, and the driver said, ‘Hurry up, let’s go.’ The
shooter ran, hopped a wall and then kicked the victim twice.
After that, the shooter got into the car and the car drove away.
“Noel Crabbe testified she saw someone get out of the red
car with a gun in his hand, chase the victim, and fire shots. After
the victim jumped over the wall, the shooter shot the victim in
the head and kicked his face. The driver of the car yelled out of
the window, ‘Let’s roll, let’s roll’ and drove the car from the
driveway area into the middle of the street so the shooter could

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‘run across and get in.’ The shooter threw the gun into the front
seat of the car because the window was down and then he jumped
in the backseat and the car drove off.
“Frank Menendez testified he had been walking with Lloyd
before the shooting. After the shooting, he saw the driver and the
passenger flash a gang sign with their hands, ‘throwing a “P”’ for
Pacoima. The driver put his hand on top of the roof of the car.
Menendez admitted he had not previously stated the driver
‘threw any sign.’
“The day before the shooting, Linda Espinoza met [Celis].
She had seen him before that date and knew people called him
‘Wicked.’ Espinoza went with [Celis] to his house and saw some
gang writing on the wall of his bedroom. She saw ‘Pacoima’ on
the wall and ‘Pacas Trece.’ There are Pacoima gang members at
her school and she understood the writing to indicate a Pacoima
gang. Appellant said he was from ‘Pacas Trece’ and threw a gang
sign with his hands. He said he did not get along with ‘San
Fernando,’ a different gang and that ‘one day he was going to . . .
end up getting them.’ He told Espinoza that he was an ‘associate
of Pacas Trece.’
“Espinoza knew Lloyd and said he was not in a gang but
only ‘associated with a gang,’ meaning he talked to them. Lloyd’s
nickname was ‘Little Ricky’ and he associated with San Fernando
Gang.
“Based on items found in [Celis’s] bedroom, it was the
opinion of Los Angeles Police Officer Francisco Alferez that
appellant was a member of the Pacoima Crazy Boys, a category of
the Pacoima Trece Street Gang. They are involved in robberies,
murder, drive-by shootings, assault with deadly weapons, grand
theft auto, battery, graffiti, narcotics sales, extortion and witness

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intimidation. In Officer Alferez’s opinion, the murder of Lloyd
was committed for the benefit of the Pacoima Crazy Boys gang
because it increased the respect and reputation of the gang and
the fear other gangs would have.” (People v. Celis (Apr. 12, 2004,
B162968) [nonpub. opn.].)
DISCUSSION
Celis Is Ineligible for Section 1170.95 Relief
A. Governing Principles
1. SB 1437’s Limitation of Accomplice Liability for
Murder
The legislature enacted SB 1437 “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).) SB 1437 amended
section 189 to provide that a participant in qualifying felonies
during which death occurs generally will not be liable for murder
unless the 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).)3
3 This limitation does not apply “when the victim is a peace
officer who was killed while in the course of the peace officer’s

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SB 1437 also “added a crucial limitation to section 188’s
definition of malice for purposes of the crime of murder.” (People
v. Verdugo (2020) 44 Cal.App.5th 320, 326, review granted,
S260493, Mar. 18, 2020 (Verdugo).) Under new section 188,
subdivision (a)(3), “‘[m]alice shall not be imputed to a person
based solely on his or her participation in a crime.’ [Citations.]”
(People v. Lewis (2020) 43 Cal.App.5th 1128, 1135 (Lewis), rev.
granted, S260598, Mar. 18, 2020.)4 “As a result, the natural and
probable consequences doctrine can no longer be used to support
a murder conviction. [Citations.]” (Ibid.)
2. Petitions to Vacate Prior Convictions
SB 1437 also added section 1170.95 to the Penal Code. This
section permits individuals who were convicted of felony murder
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).)
4 The review order in People v. Lewis states: “The issues to be
briefed and argued are limited to the following: (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, Supreme Court Mins. Mar. 18,
2020.) The review order in Verdugo states: “Further action in this
matter is deferred pending consideration and disposition of a
related issue in People v. Lewis, S260598 (see Cal. Rules of Court,
rule 8.512(d)(2)), or pending further order of the court.” (Verdugo,
S260493, Supreme Court Mins., Mar. 18, 2020.)

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or murder under a natural and probable consequences theory, but
who could not be convicted of murder following SB 1437’s changes
to sections 188 and 189, to petition the sentencing court to vacate
the conviction and resentence on any remaining counts.
(§ 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 the information is missing “and cannot be
readily ascertained by the court, the court may deny the petition
without prejudice to the filing of another petition and advise the
petitioner that the matter cannot be considered without the
missing information.” (§ 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.
(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, and has requested that counsel
be appointed, he or she is then entitled to appointed counsel.
(Ibid.; Lewis, supra, 43 Cal.App.5th at p. 1140 [“trial court’s duty
to appoint counsel does not arise unless and until the court
makes the threshold determination that petitioner ‘falls within
the provisions’ of the statute.”].) 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

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or she is entitled to relief, it must issue an order to show cause.
(§ 1170.95, subd. (c); Verdugo, supra, 44 Cal.App.5th at p. 328.)
“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 p. 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).)
B. Although SB 1437 and section 1170.95 are
constitutional, Celis is ineligible for relief as a
matter of law
Celis argues the trial court erred in concluding SB 1437
and section 1170.95 is unconstitutional. The Attorney General
agrees SB 1437 and section 1170.95 are constitutional, but
argues the trial court’s order denying Celis’s petition should be
affirmed because Celis, who was not convicted under a felony-
murder or natural and probable consequences theory of liability,
is ineligible for relief as a matter of law.
We agree with the parties that section 1170.95 is
constitutional. (See People v. Lamoureux (2019) 42 Cal.App.5th
241, 246, 251-267; People v. Superior Court (Gooden) (2019) 42
Cal.App.5th 270, 275, 279-289.)
Although SB 1437 and section 1170.95 are constitutional,
the record contains no indication the jury was instructed on a
felony-murder or natural and probable consequences theory of
liability. Rather, the record indicates Celis was prosecuted and
convicted under the theory that he was a direct aider and abettor.

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We therefore conclude Celis is ineligible for relief as a matter of
law. (See § 1170.95, subd. (a) [only individuals convicted under
felony-murder or natural and probable consequences theory are
eligible for relief].)5 We affirm the trial court’s denial of Celis’s
petition. (See People v. Smithey (1999) 20 Cal.4th 936, 972 [a
legally correct ruling will not be disturbed on appeal merely
because the trial court’s stated reason was legally incorrect].)
5 We note that on appeal, Celis does not contend he was
convicted under a felony-murder or natural and probable
consequences theory, nor does he argue he is eligible for section
1170.95 relief.

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

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