P. v. Arcuri

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Filed 5/5/21 P. v. Arcuri CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
NAOMI ARCURI,
Defendant and Appellant.
E075123
(Super.Ct.No. HEF004579)
OPINION
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, and Charles C. Ragland,
Lynne G. McGinnis and Scott C. Taylor, Deputy Attorneys-General, for Plaintiff and
Respondent.

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In 2018, the Legislature abolished the second-degree felony-murder rule; it also
abolished the natural and probable consequences doctrine with respect to murder. It
allowed persons previously convicted of murder on either theory to petition for
resentencing.
In 2003, petitioner Naomi Arcuri was convicted of second degree murder. In
2020, the trial court denied her petition for resentencing because it read our opinion in her
direct appeal to mean that she had not been convicted on a felony-murder or a natural and
probable consequences theory. Our opinion did not actually say that. At the request of
the People, however, we have taken judicial notice of the jury instructions given at
petitioner’s trial. They show that the jury was, in fact, not instructed on felony murder or
on the natural and probable consequences doctrine. It follows that petitioner was not
convicted on either theory.
In sum, the trial court erred, but the error was harmless.
I
STATEMENT OF THE CASE
A. Proceedings in the Trial Court.
In 2003, a jury found defendant guilty of second degree murder (§ 187, subd. (a))1
and elder abuse likely to cause great bodily harm or death (§ 368, subd. (b)(1)). She was
sentenced to a total of 15 years to life.
1 This and all further statutory citations are to the Penal Code.

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She appealed; we affirmed. (People v. Arcuri (2005, E034686) 2005 Cal. App.
Unpub. LEXIS 3384 [nonpub. opn.].) In our very brief statement of facts, we said “the
victim’s death [occurred] when [petitioner] beat him with a pipe and failed thereafter to
get him medical attention in a timely manner.” (Id. at p. *2.)
In 2019, defendant filed a petition for resentencing pursuant to section 1170.95.
Counsel was appointed for her.
The prosecution filed an opposition, arguing, among other things, that defendant
was not eligible for relief “because prior determinations demonstrate [defendant] was the
actual killer.” In support, they cited our previous opinion.
In her reply, defendant objected to taking judicial notice that statements in our
opinion were true. She argued that she had made a prima facie showing, and that the trial
court could not resolve any factual disputes without issuing an order to show cause.
At a status conference, on the prosecution’s motion, and over defendant’s
objection, the trial court dismissed the petition, on the ground that defendant was the
actual killer.
B. Judicial Notice on Appeal.
While this appeal was pending, at the People’s request, we took judicial notice of
the following: At defendant’s trial, the jury was instructed on aiding and abetting

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(CALJIC No. 3.01),2 but it was not instructed on the natural and probable consequences
doctrine; it also was not instructed on the felony-murder rule.
II
MATTERS SUBJECT TO JUDICIAL NOTICE DEMONSTRATE
THAT PETITIONER IS NOT ENTITLED TO RELIEF
Under the second-degree felony-murder rule, as it stood when petitioner was tried,
an unlawful killing in the course of the commission of a felony that was inherently
dangerous to human life (other than a felony listed in section 189) was second-degree
murder. (People v. Chun (2009) 45 Cal.4th 1172, 1182.)
Also, “under the natural and probable consequences doctrine, an accomplice [wa]s
guilty not only of the offense he or she directly aided or abetted (i.e., the target offense),
but also of any other offense committed by the direct perpetrator that was the ‘natural and
probable consequence’ of the crime the accomplice aided and abetted (i.e., the nontarget
offense). [Citation.]” (People v. Gentile (2020) 10 Cal.5th 830, 843.)
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(SB 1437), effective January 1, 2019. (Stats. 2018, ch. 1015, pp. 6673-6676.) SB 1437
amended section 188 so as to eliminate the second-degree felony-murder rule and to
2 Written jury instructions marked “Given on Court’s Motion” include
instructions on accomplice testimony (CALJIC Nos. 3.10, 3.11, 3.12, 3.18), including
one requiring the jury to determine whether witness Raul Rivera was an accomplice.
(CALJIC No. 3.19.) The trial court, however, never actually gave these instructions.

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eliminate the natural and probable consequences doctrine as applied to murder. (§ 188,
subd. (a)(3).)3
SB 1437 also enacted section 1170.95, which allows a person who has been
convicted of murder under either a felony-murder theory or a natural and probable
consequences theory, but who could no longer be so convicted under SB 1437, to petition
to have the conviction vacated. (§ 1170.95, subd. (a).)
The petition must include a declaration that:
“(1) A complaint, information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine.
“(2) The petitioner was convicted of first degree or second degree murder
following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder.
“(3) The petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subds. (a), (b)(1)(A).)
“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
3 In addition, SB 1437 limited the first-degree felony-murder doctrine,
making it applicable only in certain instances. (§ 189, subds. (e), (f)).

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the petitioner makes a prima facie showing that he or she is entitled to relief, the court
shall issue an order to show cause.” (§ 1170.95, subd. (c).)
Most courts have held that the prima facie phase of the proceedings is actually a
two-step process. (People v. Nunez (2020) 57 Cal.App.5th 78, 88, review granted Jan.
13, 2021 (S265918); People v. Tarkington (2020) 49 Cal.App.5th 892, 897-898, review
granted Aug. 12, 2020 (S263219); People v. Drayton (2020) 47 Cal.App.5th 965, 975-
976; People v. Torres (2020) 46 Cal.App.5th 1168, 1176, review granted Jun. 24, 2020
(S262011); People v. Verdugo (2020) 44 Cal.App.5th 320, 327-332, review granted Mar.
18, 2020 (S260493); People v. Lewis (2020) 43 Cal.App.5th 1128, 1139-1140, review
granted Mar. 18, 2020 (S260598); contra, People v. Cooper (2020) 54 Cal.App.5th 106,
118-123, review granted Nov. 10, 2020 (S264684).)
First, the trial court determines, without a hearing, whether the petitioner is prima
facie eligible for relief. At this stage, it can consider the record of conviction; this
includes any opinion in the petitioner’s direct appeal. (People v. Verdugo, supra, 44
Cal.App.5th at pp. 329-330.) If the petition, when considered together with the record, is
facially sufficient, the trial court must appoint counsel and call for the prosecution to file
an opposition. (Id. at p. 332; see also § 1170.95, subd. (c).)
Second, the trial court holds a hearing to “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. [Citations.]” (People v. Verdugo, supra, 44 Cal.App.5th at

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p. 330, italics added, fn. omitted.) At this stage, too, the trial court can consider the
record of conviction. (Id. at p. 330, fn. 9.)
“‘Allowing the trial court to consider its file and the record of conviction is . . .
sound policy. As a respected commentator has explained: “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,
when even a cursory review of the court file would show as a matter of law that the
petitioner is not eligible for relief. For example, if the petition contains sufficient
summary allegations that would entitle the petitioner to relief, but a review of the court
file shows the petitioner was convicted of murder without instruction or argument based
on the felony murder rule or [the natural and probable consequences doctrine], . . . it
would be entirely appropriate to summarily deny the petition based on petitioner’s failure
to establish even a prima facie basis of eligibility for resentencing.” [Citation.]’
[Citation.]” (People v. Law (2020) 48 Cal.App.5th 811, 821, review granted Jul. 8, 2020
(S262490).)
Most courts have also held that “‘[t]he 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.’ [Citation.]” (People v. Torres, supra, 46
Cal.App.5th at p. 1177; see People v. Rivera (2021) 62 Cal.App.5th 217, 229-230; contra,
People v. Garcia (2020) 57 Cal.App.5th 100, 110.) This stage is not the time for the trial

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court to engage in “factfinding involving the weighing of evidence or the exercise of
discretion . . . .” (People v. Drayton, supra, 47 Cal.App.5th at p. 980.)
In this case, the People accept this view of the law. Moreover, they concede that,
by finding that petitioner was the actual killer, the trial court “went beyond a trial court’s
limited role in the first two prima facie stages . . . .”
Contrary to petitioner’s position below, this court has held that, in a proceeding
under section 1170.95, the trial court can rely on facts stated in a previous appellate
opinion. (People v. Clements (2021) 60 Cal.App.5th 597, 612-613, pet. for rev. filed
Mar. 16, 2021.) However, our opinion in petitioner’s direct appeal did not conclusively
establish that she was the actual killer. It is possible that, although petitioner hit the
victim in the head with a pipe, she did not cause his death; rather, she had an accomplice
who did. (The fact that the jury was instructed on aiding and abetting further supports
this possibility, at least in hindsight.) Thus, she could have been convicted under a
natural and probable consequences theory.
We also note that, while an actual killer can still be convicted under the first-
degree felony-murder rule (§ 189, subd. (e)(1)), the second-degree murder rule has been
wholly abolished, even as to an actual killer. (§ 188, subd. (c).) Our opinion also did not
conclusively establish that petitioner was not convicted under a second-degree felony-
murder theory (perhaps with elder abuse as the underlying felony).

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Thus, we accept the People’s concession that the trial court erred. The People
argue, however, that the jury instructions, of which we have taken judicial notice,
establish that the error was harmless.
We agree. The jury was not instructed on either felony-murder or the natural and
probable consequences doctrine. It could find petitioner guilty only on one of two
theories: either (1) she was the actual killer, or (2) she aided and abetted the actual killer.
Either way, she had to be acting with express or implied malice. (See People v. Gentile,
supra, 10 Cal.5th at p. 850.) Thus, the jury instructions conclusively establish that
petitioner was not “convicted of felony murder or murder under a natural and probable
consequences theory,” and therefore she is not entitled to relief. (§ 1170.95, subd. (a).)
Petitioner argues that this conclusion is “premature,” because she was entitled to
an order to show cause and an evidentiary hearing, at which she would have had the
opportunity to show that she was eligible for resentencing. Not so. At the prima facie
stage, the trial court could have considered the jury instructions; and if it had, they would
have shown that she was not entitled to an order to show cause.
If there is something in the record of conviction that shows otherwise, petitioner is
free to ask us to take judicial notice of it. She does point to several indications in the
record that Raul Rivera was somehow involved in the crime. The question, however, is
not whether petitioner was the actual killer; it is whether she was convicted under a
natural and probable consequences theory. If she was the actual killer, she was not. But
if she aided and abetted Rivera while acting with express or implied malice, again she

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was not. Bottom line: A jury that was not instructed on the natural and probable
consequences theory could not possibly have found petitioner guilty on a natural and
probable consequences theory.
Finally, petitioner suggests that she may have had a tactical reason to prevent the
jury from being instructed on the second-degree felony-murder rule or the natural and
probable consequences doctrine. For example, on the instructions as given, she was
entitled to be acquitted as long as she was not the actual killer and she did not act with
express or implied malice; but under a natural and probable consequences instruction, not
necessarily so. Nevertheless, she is stuck with those tactical decisions. (People v. Daniel
(2020) 57 Cal.App.5th 666, 678 [“We cannot agree that section 1170.95 authorizes a
defendant to present new evidence to undermine a jury’s finding of guilt under a
particular theory of murder, effectively retrying the case.”], review granted Feb. 24, 2021
(S266336).) Certainly they were not ineffective assistance of counsel; her attorney in
2003 could hardly be expected to foresee the enactment of section 1170.95 in 2018.
III
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
SLOUGH
J.

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