P. v. Medrano

Filed 7/2/20 P. v. Medrano CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ROLANDO MEDRANO,
Defendant and Appellant.
B297430
(Los Angeles County
Super. Ct. No. BA291921-01)
APPEAL from an order of the Superior Court of Los
Angeles County, Renee F. Korn, Judge. Affirmed.
Thomas Owen, 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, Idan Ivri, Deputy Attorney General, and
Amanda V. Lopez, Deputy Attorney General, for Plaintiff and
Respondent.
* * * * * *

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Rolando Medrano (defendant) filed a petition seeking
resentencing pursuant to Penal Code section 1170.95.1 The
People filed a response and the trial court appointed counsel, but
the court summarily denied the petition after finding that the
record of conviction established, as a matter of law, that
defendant was not entitled to relief. The trial court’s substantive
ruling was correct, rendering any procedural irregularities
harmless. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The underlying crime
In August 2005, defendant belonged to a street gang called
the “Maniacs.” On one of the Saturdays that month, defendant
and his friends “got into arguments” with Jose Duran and his
friends at a quinceañera celebration at a church. As the party
wound down, defendant and his friends “began beating” Duran
and his friend. They then started to “chase[]” Duran. One of
defendant’s “gang” “associate[s]” caught up to Duran and stabbed
him with a knife. Defendant joined in, stabbing Duran “between
the abdomen and [the] chest.” Duran broke free, but defendant
“pursued [him] to an alley[,] where he continued stabbing him.”
Duran died from the stab wounds.
B. Prosecution, conviction and appeal
The People charged defendant with Duran’s murder
(§ 187). The People alleged that defendant “personally used a
deadly and dangerous weapon” (a knife) in committing the
murder (§ 12022, subd. (b)(1)). The People further alleged that
1 All further statutory references are to the Penal Code
unless otherwise indicated.

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defendant’s 2005 conviction for assault with a deadly weapon
(§ 245, subd. (a)(1)) constituted a “strike” within the meaning of
our Three Strikes Law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-
(i)).
The jury was instructed that defendant could be liable for
murder (1) as the perpetrator or (2) as a person who directly
aided and abetted the perpetrator. The jury was not instructed
that defendant could be liable for murder under the felony-
murder doctrine or as a natural and probable consequence of a
different crime he aided and abetted.
The jury convicted defendant of first degree murder, but
hung on the personal use allegation. The court sentenced
defendant to prison for 25 years to life.
Defendant appealed his conviction, and we affirmed in an
unpublished decision. Among other challenges to the conviction,
defendant argued that the trial court erred in instructing the jury
that he could be held liable for murder as a direct aider and
abettor. In rejecting this argument, we held that “the evidence
[at trial] supported the inference that [defendant] was either a
direct perpetrator” of the murder (because he “caused the fatal
wound”) or an “aider and abettor” (because he “aided and
abetted” the fellow gang member who caused “the fatal [stab]
wound”).
II. Procedural Background
On January 28, 2019, defendant filed a petition seeking
resentencing under section 1170.95. In the form petition,
defendant checked the boxes for the allegations that he had been
charged with murder, that he was convicted “pursuant to the
felony murder rule or the natural and probable consequences
doctrine,” and that his murder conviction would be invalid under

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the “changes made to Penal Code §§ 188 and 189, effective
January 1, 2019.” He also requested the appointment of counsel.
The People filed a response, arguing that section 1170.95
was unconstitutional and that defendant could not in any event
“avail himself of the relief offered” under that section. The court
also appointed defendant counsel. At a hearing on April 2, 2019,
the court entertained argument from counsel but counsel never
asked the court for permission to file a reply brief. At the
hearing, the court ruled that defendant had not made a “prima
faci[e] showing” of entitlement to relief under section 1170.95
because “the court file” indicated that he was guilty of murder
either as “the actual killer” or “on an aider and abettor theory.”
Later the same day, the court issued an order summarizing its
findings and denying defendant’s petition.
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1170.95 petition and in doing so without first
allowing him to file a reply. Because resolution of this argument
turns on questions of statutory construction and the application
of law to undisputed facts, our review is de novo. (People v.
Blackburn (2015) 61 Cal.4th 1113, 1123; Martinez v. Brownco
Construction Co. (2013) 56 Cal.4th 1014, 1018.)
A person filing a petition under section 1170.95 is entitled
to the appointment of counsel and the opportunity to “file and
serve a reply” to the People’s “response” if he makes “a prima
facie showing that [he] falls within the provisions of this section.”
(§ 1170.95, subd. (c); People v. Lewis (2020) 43 Cal.App.5th 1128,
1140 (Lewis), review granted Mar. 18, 2020, S260598; People v.
Verdugo (2020) 44 Cal.App.5th 320, 330 (Verdugo), review

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granted Mar. 18, 2020, S260493; see also People v. Fryhaat (2019)
35 Cal.App.5th 969, 982-984 [so holding, as to post-conviction
relief under section 1473.7].) A person “falls within the
provisions of” section 1170.95 if, as relevant here, (1) “[a]
complaint, information, or indictment was filed against [him]
that allowed the prosecution to proceed under a theory of felony
murder . . .,” (2) he “was convicted of first degree murder
. . . following a trial,” and (3) he “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, subd. (a).) A person
may be convicted of murder, even after the 2019 changes made to
sections 188 and 189, if he “was the actual killer” (§ 189, subd.
(e)(1)); he “aided [and] abetted . . . the actual killer in the
commission of murder in the first degree” “with the intent” to do
so (§ 189, subd. (e)(2)); or he “was a major participant in the
underlying felony and acted with reckless indifference to human
life.” (§ 189, subd. (e)(3).) A “‘prima facie showing is one that is
sufficient to support the position of the party in question.’”
(Lewis, at p. 1137, quoting Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 851.)
Although defendant in his petition alleged each element
necessary to make out a prima facie case for relief under section
1170.95, a trial court evaluating whether a defendant has made a
prima facie showing in a section 1170.95 petition is not required
to accept those 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 defendant’s 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,

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italics added; Verdugo, at p. 330; see also People v. Cornelius
(2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020,
S260410 [record must show defendant is “indisputably ineligible
for relief”].)
Here, the trial court correctly concluded that defendant did
not make out a prima facie case for relief because the record of
conviction establishes, as a matter of law, that he is not eligible
for relief. The trial court instructed the jury that it could convict
defendant of first degree murder only if he was (1) the actual
killer, or (2) if he aided and abetted the actual killer in
committing the murder; the trial court provided the jury with no
other theories of liability. As a result, the jury’s guilty verdict
necessarily relies on its finding that defendant was either the
actual killer or someone who directly aided and abetted the
actual killer. (Accord, In re Hansen (2014) 227 Cal.App.4th 906,
922 [“‘Absent some contrary indication in the record, we presume
the jury followed its instructions “and that its verdict reflects the
legal limitations those instructions imposed.”’”], quoting Cassim
v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803-804.) Because, as
noted above, a person who is the actual killer or who directly aids
and abets the actual killer in committing first degree murder is
still liable for murder under the now-amended sections 188 and
189 (§ 189, subds. (e)(1) & (e)(2); Lewis, supra, 43 Cal.App.5th at
p. 1137 [“one can be convicted of murder even after the
amendments if he . . . directly aided and abetted the perpetrator
of the murder”]), defendant is ineligible for relief under section
1170.95 as a matter of law. What is more, this court specifically
found that “[t]he evidence [at trial] support[ed] the inference that
[defendant] was either a direct perpetrator or an aider and
abettor” when it rejected defendant’s challenge to the aiding and

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abetting instruction. This finding also forecloses relief. (E.g.,
Lewis, supra, 43 Cal.App.5th at pp. 1138-1139 [finding of
appellate court necessarily forecloses relief]; Verdugo, supra, 44
Cal.App.5th at pp. 335-336 [same]; see generally People v.
Stanley (1995) 10 Cal.4th 764, 786-787 [describing the law of the
case doctrine and its application to the findings of appellate
courts].)
Because defendant is not entitled to relief under section
1170.95 as a matter of law, any error the trial court may have
committed by not allowing defendant to file a reply brief is
necessarily harmless.
Defendant makes three arguments in response.
First, he argues that his inability to file a reply brief is not
harmless because a trial court lacks the power to summarily deny
a petition if that petition contains the appropriate allegations.
Denying relief just because the record of conviction forecloses
such relief as a matter of law, defendant continues, is
inconsistent with the statutory right of section 1170.95
permitting petitioners to present “new or additional evidence.”
(§ 1170.95, subd. (d)(3).) Thus, he concludes, Verdugo, Lewis and
Cornelius are wrongly decided. We disagree, for the reasons
articulately set forth in those decisions. Although, as defendant
trumpets, our Supreme Court has granted review in those cases,
we find them to be persuasive unless and until they are reversed.
Second, he argues that the trial court’s ruling was
“inconsistent with the prima facie . . . standard” because the
court “never mentioned a prima facie case.” But whether the
trial court recited the words “prima facie” is of no moment where,
as here, the analysis the court actually undertook is consistent
with the proper analysis of whether a defendant has made a

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prima facie showing.
Third, he argues that he did not forfeit his right to file an
optional reply brief merely because his counsel did not ask for
leave to file one, and that, if his counsel’s silence did effect such a
forfeiture, his counsel was constitutionally ineffective. We need
not address this argument in light of our conclusion that the
absence of a reply brief was harmless due to the unavailability of
section 1170.95 relief as a matter of law.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P.J.
ASHMANN-GERST
_________________________, J.
CHAVEZ

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