P. v. Gutierrez

Filed 6/25/20 P. v. Gutierrez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
OSCAR GUTIERREZ,
Defendant and Appellant.
B300949
(Los Angeles County
Super. Ct. No. BA149083)
APPEAL from an order of the Superior Court of Los
Angeles County, Ray G. Jurado, Judge. Affirmed.
Jonathan E. Demson for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Acting
Assistant Attorney General, Idan Ivri and Nancy Lii Ladner,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Oscar Gutierrez was convicted of
second-degree murder for his part in a shooting. Years later, he

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filed a petition for resentencing, under the recently-adopted
Penal Code section 1170.95, which permits certain defendants
convicted of murder to seek resentencing.1
The statute requires the court to make a preliminary
determination of the defendant’s eligibility for relief. If
defendant’s petition survives eligibility review, the court appoints
counsel for the defendant and allows the parties to brief whether
defendant has established a prima facie showing of entitlement to
relief under the statute. In this case, defendant filed his petition,
and the court permitted the parties to brief the matter without
making an express determination of eligibility and without
appointing counsel for defendant. The District Attorney filed its
opposition; the imprisoned defendant did not reply. The court
then denied defendant’s petition, making adverse findings both
on defendant’s eligibility for relief under the statute and his
entitlement to relief. Defendant appeals. The prosecution
concedes the trial court’s procedure was improper, but argues
defendant was nonetheless ineligible for relief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Defendant’s Crime2
Defendant and his co-defendant, Javier Miranda, were
convicted of second-degree murder from a 1997 incident in which
Miranda shot and killed the victim. Miranda killed Oscar
1 All undesignated statutory references are to the Penal
Code.
2 We take our discussion of the facts from our opinion in
defendant’s prior appeal. The prosecution filed our prior opinion
as part of its opposition to defendant’s resentencing petition.
(People v. Gutierrez (Apr. 18, 2000, B1322212) [nonpub. opn.].)

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Cornejo shortly after a confrontation with Oscar’s brother,
Vicente, with whom Oscar shared a physical resemblance.
At 8:15 p.m. on April 19, 1997, Vicente Cornejo was
walking with his girlfriend to a barbecue hosted by Tomas
Gonzalez. A vehicle pulled up to a stop in front of them.
Defendant was driving; Miranda was the passenger. Miranda got
out of the car and issued a gang challenge to Vicente Cornejo.
Vicente Cornejo’s girlfriend answered that he was not a member
of any gang. Miranda wanted to fight and continued to challenge
Vicente Cornejo. Words were exchanged. Miranda reached
under his shirt. Concerned that Miranda was reaching for a
weapon, Vicente Cornejo punched him in the face and the men
began fighting. Vicente Cornejo got the better of Miranda.
Eventually, Gonzalez came over and broke up the struggle; he
threw Miranda into the back seat of the car, telling Miranda and
defendant to leave them alone. When Gonzalez was putting
Miranda in the car, defendant turned around and told him,
“Payback’s a bitch.”
Miranda got out of the car again, this time holding a
sawed-off rifle. He took a few steps toward Vicente Cornejo and
Gonzalez while holding the rifle, and the two men ran away.
Miranda got back into the car and defendant drove off.
Police were called, and Gonzalez and Vicente Cornejo spoke
with the officers. Vicente Cornejo decided not to go to the
barbecue, but his brother Oscar went over with Gonzalez.
In the meantime, defendant and Miranda picked up an
additional male passenger and drove back to the scene. The car’s
headlights were off. Someone from the car yelled his gang name
and an insult. Gonzalez and Oscar Cornejo approached the car.
When they arrived at the bottom of the driveway, Miranda was

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already standing outside the car aiming his rifle. Defendant
remained in the car. Oscar Cornejo said they were not gang
members and did not want any trouble. Defendant Miranda
attempted to fire his rifle; it only clicked. Gonzalez and Oscar
Cornejo ran up the driveway. Miranda’s rifle was missing its
magazine tube. To fire, it was necessary to hold up the gun and
“jiggle” it in order to get a round into the chamber. Defendant
Miranda did this twice and fired off two rounds. One bullet hit
Oscar Cornejo in the back and passed through his heart and lung,
killing him.
Miranda got back in the car and the three men sped away
with headlights off. Police arrested Miranda and defendant later
that night.3 Miranda had the rifle in his possession.
Defendant and Miranda were charged with the murder of
Oscar Cornejo. (§ 187.) It was alleged that Miranda personally
used a firearm within the meaning of section 12022.5, subdivision
(a)(1). As to defendant, it was alleged that a principal was armed
with a firearm within the meaning of section 12022, subdivision
(a)(1).
At trial, defendant did not testify. Codefendant Miranda
testified as follows. Miranda had started the fight with Vicente
Cornejo and had subsequently chased Vicente Cornejo and
Gonzalez with his rifle. He had wanted to continue his fight with
them, so he and defendant had picked up another man to even
the numbers for a fistfight. When defendant drove back to the
barbecue, Gonzalez and Oscar Cornejo threw things at the car.
Miranda said he had believed the car was being hit with rocks
3 The prior appellate opinion, and therefore the present
record, is silent as to what became of the third man in the car.

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and bottles, and perhaps someone had been shooting at the car.
He was scared of being killed, so he got out of the car and waved
the gun to scare away Gonzalez and Oscar Cornejo. Miranda
then testified that he fired in the air to frighten them. He had
been drinking and was affected by the alcohol. After he had fired
the first shot, Gonzalez and Oscar Cornejo ran, but he fired the
second time even though they were running away and not
throwing anything at the car. Miranda believed he had aimed in
the air, but he had probably shot in the direction of Oscar
Cornejo.
Both Miranda and defendant were acquitted of first degree
murder, but found guilty of second degree murder. The weapon
allegations were found true. Defendant was sentenced to 16
years to life in prison.
2. Defendant’s Appeal
This court affirmed defendant’s conviction. (People v.
Gutierrez, supra, B132212.) On appeal, he challenged the
language of the jury instructions given on aider and abettor
liability, specifically that part of the instruction that aiders and
abettors are “equally guilty” as direct offenders. The jury had
been instructed in the language of CALJIC Nos. 3.00 and 3.01.
Defendant suggested that the “equally guilty” words, when taken
out of context, enabled the jury to find him guilty even if he did
not possess the necessary mental state for aider and abettor
liability. We concluded the jury instructions in their entirety
properly set forth the requirements for aider and abettor liability,
including that the aider and abettor of a specific intent crime
must share the perpetrator’s specific intent.
Defendant also argued that there was no legal basis for his
conviction of second degree murder. Specifically, he

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acknowledged that the evidence was sufficient to support the
finding he was an aider and abettor, in that he threatened
Gonzalez with payback and drove Miranda to the scene with the
car’s headlights off. However, defendant argued that, given the
jury’s rejection of first degree murder, he could not be convicted of
second degree murder either: The jury must have concluded that
Miranda’s intent (either express or implied malice) was formed
after anything defendant may have done to aid and abet
Miranda.
We rejected this argument, concluding that defendant’s
“view of the facts is too narrow. The facts support the finding
that the intent to kill was formulated at the time [Miranda] was
bested by Vicente Cornejo, and [defendant] aided and abetted
[Miranda] in his plan to take revenge by killing. However, the
jury may have concluded [Miranda] committed the murder while
under the provocation of his humiliating loss of the original fight
and, therefore, did not deliberate the killing.” Alternatively, the
court concluded the second degree verdict may have resulted from
juror leniency.
A footnote in the opinion read: “Defendant Gutierrez
acknowledges that the facts could have supported a conviction
under the ‘natural and probable consequences’ theory, by which ‘a
person who aids and abets a confederate in the commission of a
criminal act is liable not only for that crime (the target crime),
but also for any other offense (nontarget crime) committed by the
confederate as a “natural and probable consequence” of the crime
originally aided and abetted.’ [Citation.] However, the jury was
not instructed on this theory.”

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3. Senate Bill No. 1437
In 2018, the Legislature adopted Senate Bill No. (SB) 1437,
which, among other things, “significantly restricted potential
aider and abettor liability, as well as coconspirator liability, for
murder under the natural and probable consequences doctrine.”
(People v. Lopez (2019) 38 Cal.App.5th 1087, 1103, review
granted Nov. 13, 2019.) In addition, SB 1437 enacted a new
procedure, codified in section 1170.95, by which a defendant
convicted of felony murder or murder under the natural and
probable consequence doctrine could seek resentencing under the
new, narrower, version of the law.
SB 1437 eliminated the natural and probable consequences
doctrine as it relates to murder. (People v. Verdugo (2020)
44 Cal.App.5th 320, 323, review granted Mar. 18, 2020
(Verdugo).) It also narrowed felony murder liability. Under the
law as amended, malice shall not be imputed to a person solely
based on his or her participation in a crime, except when the
defendant either (1) was the actual killer; (2) with the intent to
kill, aided and abetted the actual killer in the commission of
murder in the first degree; or (3) was a major participant in the
underlying felony and acted with reckless indifference to human
life. (§§ 188, subd. (a)(3); 189, subd. (e).)
A defendant who has previously been convicted of murder,
but would no longer be subject to murder liability under the law
as amended by SB 1437, may seek resentencing pursuant to the
procedure established by section 1170.95. If the defendant
prevails, and had been charged with murder “generically, and the
target offense was not charged, the petitioner’s conviction shall
be redesignated as the target offense or underlying felony for
resentencing purposes.” (§ 1170.95, subd. (e).)

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Once a petition is filed, there follows a multi-step process
by which the court determines whether the petition is facially
sufficient, and, if so, whether the petitioner has made a prima
facie showing that he falls within the provisions of statutory
eligibility. (People v. Torres (2020) 46 Cal.App.5th 1168, 1177,
petn. for review filed May 26, 2020.) At the first stage, the court
is to examine only the “readily available portions of the record” to
make a determination of whether the defendant is statutorily
eligible for relief. (Verdugo, supra, 44 Cal.App.5th at p. 323.) If
the court determines the petitioner is ineligible for relief as a
matter of law, the petition is denied at this first stage; if not, the
court proceeds to the next step. (Torres at pp. 1177-1178.) At the
second stage, the court must appoint counsel for the defendant, if
requested, and permit briefing on the issue of the defendant’s
entitlement to relief under the statute. (Verdugo at p. 330.) The
defendant has the burden of making a prima facie showing that
he is entitled to relief. (§ 1170.95, subd. (c).)
4. Section 1170.95 Proceedings
On March 26, 2019, defendant, self-represented, filed a
form petition for resentencing under section 1170.95. He checked
the boxes of the petition indicating that he was entitled to relief.4
Defendant requested appointment of counsel.
4 Defendant checked the box indicating that he was
“convicted of 1st or 2nd degree murder pursuant to the felony
murder rule or the natural and probable consequences doctrine.”
The form provided two other sets of checkboxes – one set for “I
was convicted of 1st degree felony murder . . .” and one for “I was
convicted of 2nd degree murder under the natural and probable
consequences doctrine or under the 2nd degree felony murder
doctrine . . . .” Defendant checked the former and not the latter.

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The court issued a minute order setting the matter for
review on May 31, 2019.
On May 30, 2019, without leave of the court, the District
Attorney filed an opposition. The opposition raised multiple
grounds – including an argument, not pursued on appeal, that
section 1170.95 is unconstitutional. The prosecution asserted
that defendant was not eligible for relief under the statute as a
matter of law, as he was convicted as a principal. The District
Attorney then turned to a factual argument, stating, the
“evidence proved that [defendant] was a ‘major participant’ who
acted with a ‘reckless indifference to human life.’ ” The
prosecution supported its opposition with various exhibits,
including the appellate opinion affirming defendant’s conviction,
defendant’s probation report,5 and an exhibit from the trial, not
It is clear that defendant was convicted of second degree murder,
not first degree murder. (See People v. Drayton (2020)
47 Cal.App.5th 965, 980 [we need not credit factual assertions in
the petition that are untrue as a matter of law].) Under the
circumstances, we consider whether defendant’s second degree
murder conviction was under one of the doctrines rendering him
eligible for relief under section 1170.95 (felony murder or natural
and probable consequences) and do not treat his failure to check
the second degree murder box as a waiver.
5 Specifically, the prosecution relied on the facts of the crime
not only as set forth in the appellate opinion, but also discussed
in defendant’s pre-plea probation report – facts which indicate
they were taken from the police report. The prosecution conceded
the law on whether the court could rely on a pre-plea report is
“unclear,” but argued the court could rely on the “entire record of
conviction” in a section 1170.95 proceeding, notwithstanding the
rules of evidence.

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otherwise identified, in which someone (identified as “G”) stated
that “the driver” said, “ ‘Payback’s a bitch,’ or something like
that.”6 The District Attorney also attached to its opposition six
orders in other Los Angeles Superior Court cases denying section
1170.95 relief and some legislative history of SB 1437, in support
of its unconstitutionality argument.
On May 31, 2019, the court issued an order indicating the
prosecution’s response had been filed, and granting defendant to
July 8, 2019 to file a reply. Defendant, who had not been
appointed counsel and was imprisoned, did not file a reply.
On July 8, 2019, the court took the matter under
submission. On July 15, 2019, the court issued its order denying
the petition, concluding defendant was not eligible for relief
under section 1170.95. The court’s order states, “Even assuming
the above mentioned section is constitutional, resentencing does
not apply: defendant was convicted of second degree murder as a
principal, had the intent to kill, and was a major participant who
acted with reckless indifference to human life.”
Defendant filed a timely notice of appeal.
DISCUSSION
1. The Trial Court Erred in Not Appointing Counsel for
Defendant
The first inquiry under section 1170.95 is a determination
of whether the defendant has established a prima facie showing
of eligibility for relief, an inquiry the trial court may make prior
to the appointment of counsel. (Verdugo, supra, 44 Cal.App.5th
6 The excerpt is marked as part of an exhibit admitted at
defendant’s jury trial. It is unclear whether the transcript is
from a preliminary hearing or some other proceeding.

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at p. 323.) “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.” (§ 1170.95, subd.
(c)(2).)
Although the District Attorney and original defense counsel
must be served with the petition (§ 1170.95, subd. (b)(1)), at this
stage there is no provision for the filing of an opposition to the
petition or a reply. (Verdugo, supra, 44 Cal.App.5th at p. 326
[first stage eligibility inquiry is “made before any briefing”].) Nor
is defendant entitled to counsel at this point of the proceeding.
(Id., at p. 332.) Assuming defendant gets past this first stage, the
second inquiry, to determine whether a defendant has made a
prima facie showing of entitlement to relief, requires the
appointment of counsel (if requested). It is at this second stage
that the People may file an opposition and the defendant a reply.
The defendant has the burden to establish a prima facie showing
of entitlement to relief, and the parties may rely on evidence
outside the record. (Verdugo at p. 328; § 1170.95, subd. (d)(3).)
This entitlement hearing may also encompass issues of
eligibility, if eligibility was not resolved by the trial court’s initial,
prima facie, review. (Verdugo, supra, 44 Cal.App.5th at p. 330,
fn. 9.) But, if the issue of eligibility requires an assessment of the
evidence, the court must appoint counsel and permit briefing.
(People v. Smith (2020) 49 Cal.App.5th 85, ___ [262 Cal.Rptr.3d
687, 694].)
Here, the trial court did not separately conduct a first-stage
prima facie review. Instead the court allowed the briefing
permitted at the entitlement stage. The court’s procedure only
partially complied with the statutory requirements at the
entitlement stage. The court failed to appoint counsel for

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defendant. The trial court merely offered the defendant an
opportunity to file a reply brief. Without legal assistance,
defendant, an incarcerated inmate, was asked to respond not only
to the prosecution’s evidentiary proffer, but also to its complex
and technical argument regarding the constitutionality of the
process by which SB 1437 was enacted. Not surprisingly,
defendant did not file a reply. (See Gideon v. Wainwright (1963)
372 U.S. 335, 344-345 [“The right to be heard would be, in many
cases, of little avail if it did not comprehend the right to be heard
by counsel.”].)
The Attorney General concedes that the procedure the trial
court utilized was improper and that the court should not have
accepted the District Attorney’s opposition without appointing
counsel for defendant. We agree with the concession. Proceeding
to the entitlement hearing yet not appointing counsel for
defendant violates the express terms of the statute, and the case
law interpreting it.7 (E.g., People v. Smith, supra, 49 Cal.App.5th
at p. ___ [262 Cal.Rptr.3d at p. 695]; Verdugo, supra,
44 Cal.App.5th at p. 323.)
2. The Error was Harmless
On appeal, the Attorney General argues that we should
find any error harmless because defendant is ineligible for relief
as a matter of law. We agree.
A defendant is eligible for relief under section 1170.95 if the
defendant was convicted of “felony murder or murder under a
natural and probable consequences theory.” (§ 1170.95, subd.
7 The published appellate cases setting forth the procedure
governing section 1170.95 motions did not exist at the time of the
court’s ruling.

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(a).) The prior appellate opinion confirms that defendant was not
convicted under a natural and probable consequences theory,
although defendant conceded the evidence could have supported
it. Therefore, defendant can only be eligible for relief under
section 1170.95 if he was convicted under a felony murder theory.
Defendant does not suggest that he was convicted of felony
murder. The prior opinion confirms this, stating only that he was
charged with, and convicted of, murder under section 187, not
felony murder under section 189. In listing the charges, the prior
opinion not only does not indicate felony murder, it makes no
mention of any underlying felony on which a charge of felony
murder could be based. Defendant’s co-defendant, Miranda, who
had been the actual killer, argued that the jury should have been
instructed on voluntary manslaughter. In the course of rejecting
that argument, we explained, “In addition to instruction on first
degree murder, the jury was instructed on second degree murder
on both unpremeditated express malice (CALJIC No. 8.30) and
implied malice (CALJIC No. 8.31) theories.” Miranda was
convicted of second-degree murder on a theory of express or
implied malice, not a theory of felony-murder. Defendant, who
aided and abetted him, was convicted as a direct aider and
abettor who shared his intent.
DISPOSITION
The order denying defendant’s petition for resentencing is
affirmed.
RUBIN, P. J.
WE CONCUR:

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BAKER, J. MOOR, J.

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