P. v. Lazos

Filed 7/20/20 P. v. Lazos CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA JONATHAN LAZOS,
Defendant and Appellant.
B300314
(Los Angeles County
Super. Ct. No. BA259099)
APPEAL from an order of the Superior Court of Los
Angeles County. Curtis B. Rappe, Judge. Affirmed.
Kathy R. Moreno, 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
Assistant Attorney General, Kristen J. Inberg and Roberta L.
Davis, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * * * * * *

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Defendant and appellant Joshua Jonathan Lazos appeals
from the denial of his petition for resentencing pursuant to Penal
Code section 1170.95. We affirm.
In 2004, a jury found defendant guilty of one count of first
degree murder arising from an incident in which he and his
brother confronted the victim, yelling gang names, and shot the
victim at close range. Defendant was sentenced to 25 years to life
in prison. In 2009, this court affirmed defendant’s conviction in
an unpublished opinion (People v. Lazos (Mar. 11, 2009, B204121)
[nonpub. opn.]).
In May 2019, defendant filed a petition for resentencing
pursuant to Penal Code section 1170.95, a new statute that
became effective January 1, 2019. Defendant’s petition alleged
he was not the actual killer, was not a major participant, and he
had been convicted pursuant to the felony murder rule or the
natural and probable consequences doctrine. The petition also
requested appointment of counsel.
The trial court denied the petition, explaining the record
established defendant was convicted either as a direct aider and
abettor or as the actual killer. The court also said the jury
instructions showed the jury was not instructed on felony murder
or the natural and probable consequences doctrine. Defendant
filed a timely appeal. We granted respondent’s request to take
judicial notice of the record in the direct appeal.
Defendant contends the trial court erred in summarily
denying the resentencing petition without first appointing
counsel. Defendant argues the trial court’s denial is at odds with
the statutory language and violates his state and federal
constitutional rights to counsel.

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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 1437 (2017-2018 Reg.
Sess.). “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, ch. 1015, § 1, subd. (f).)” (People v. Martinez
(2019) 31 Cal.App.5th 719, 723.)
Penal Code section 1170.95 contemplates an initial
eligibility determination by the court. Section 1170.95,
subdivision (c) provides 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.”
Here, there is no reasonable factual dispute that defendant
is ineligible for relief under Penal Code section 1170.95. Where
there is no reasonable factual dispute as to eligibility it would be
a waste of judicial resources to automatically require the
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

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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.
Defendant’s petition did not show he fell within the
provisions of the statute. Penal Code section 1170.95,
subdivision (a) provides, in plain language, that only persons
“convicted of felony murder or murder under a natural and
probable consequences theory” may file a petition seeking
resentencing. Regardless of the conclusory statements in
defendant’s petition, defendant was charged and convicted of first
degree murder based on evidence establishing he either directly
aided and abetted his brother in the shooting or was the actual
killer. The jury was instructed on first and second degree murder
and aiding and abetting, but not on felony murder or the natural
and probable consequences doctrine. The prosecution did not rely
on either theory in prosecuting defendant. After reviewing the
court file, the trial court acted in accordance with the statutory
language by issuing a summary denial of the petition. Pending
further guidance from our Supreme Court, we adopt the analysis
of Lewis, that the trial court may review the record of conviction
in assessing whether a defendant has made a prima facie
showing. Because defendant did not satisfy the first step of
establishing prima facie case, he was not entitled to appointment
of counsel.

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DISPOSITION
The order denying the petition for resentencing is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.

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