P. v. Bautista

Filed 1/8/20 P. v. Bautista CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE PEDRO BAUTISTA,
Defendant and Appellant.
G057499
(Super. Ct. No. 09NF3148)
O P I N I O N
Appeal from an order of the Superior Court of Orange County, Kimberly
Menninger, Judge. Affirmed.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney
General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for
Plaintiff and Respondent.
* * *

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In 2011, the prosecution charged defendant Jose Pedro Bautista and two
codefendants with murder. Bautista pleaded guilty to voluntary manslaughter as an aider
and abettor. The trial court imposed a negotiated sentence of 14 years in state prison.
In 2018, the Legislature limited accomplice liability for murder. Generally,
aiders and abettors can no longer be convicted of murder under the felony-murder rule or
the natural and probable consequences doctrine. The Legislature also enacted a statute
allowing eligible aiders and abettors previously convicted of murder to petition trial
courts to vacate their prior convictions and be resentenced. (Pen. Code, § 1170.95, added
by Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019.)1
In 2019, Bautista filed a section 1170.95 petition claiming he was convicted
of murder. The trial court summarily denied the petition because Bautista was not, in
fact, convicted of murder, he was convicted of manslaughter.
On appeal, Bautista does not argue the merits; that is, he does not argue that
he is eligible for relief under section 1170.95. Rather, Bautista argues the trial court
committed error by not first appointing him counsel before ruling on his petition. We
disagree and affirm the order of the court.
I
PROCEDURAL HISTORY
On October 12, 2011, the prosecution filed an information charging
Bautista and two codefendants with four crimes: the murder of John Doe, conspiracy to
commit an assault, active gang participation, and the attempted murder of J. Martinez.
The complaint further alleged several related gang and firearm enhancements.
On September 28, 2012, Bautista pleaded guilty to three crimes: voluntary
manslaughter, conspiracy to commit an assault, and active gang participation. Bautista
1 Further undesignated statutory references are to the Penal Code.

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admitted that he “aided and abetted in the unlawful killing” of John Doe and the crime
was committed for the benefit of his gang. The prosecution dismissed the remaining
charges and sentencing allegations. The trial court imposed a negotiated sentence of 14
years in state prison.
On January 23, 2019, Bautista filed a petition under section 1170.95.
Bautista declared: “I pled guilty or no contest to 1st or 2nd degree murder in lieu of
going to trial because I believed I could have been convicted of 1st or 2nd degree murder
at trial pursuant to the felony murder rule or the natural and probable consequences
doctrine.” Bautista further stated: “I request that this court appoint counsel for me
during this re-sentencing process.”
On February 25, the trial court conducted a hearing on Bautista’s section
1170.95 petition. Neither the parties, nor a court reporter, were present. The court
summarily denied the petition. According to the court’s minute order: “The petition
does not set forth a prima face [sic] case for relief under the statute. A review of the
court’s records indicates defendant is not eligible for relief under the statute because the
defendant does not stand convicted of murder . . . .”
II
DISCUSSION
Bautista argues the trial court’s order was in error based on his reading of
section 1170.95. This is a pure legal issue involving statutory interpretation; therefore,
our review is de novo. (See People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)
A. Principles of Statutory Interpretation
When construing a statute, our goal is to ascertain legislative intent to
effectuate the purpose of the law. (People v. Jefferson (1999) 21 Cal.4th 86, 94.) The
words of a statute are to be given their usual and ordinary meaning. (Granberry v. Islay

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Investments (1995) 9 Cal.4th 738, 744.) If the statutory language is unambiguous, “we
presume the Legislature meant what it said, and the plain meaning of the statute
governs.” (People v. Robles (2000) 23 Cal.4th 1106, 1111.)
Courts may neither insert words nor delete words in an unambiguous
statute; the drafting of statutes is solely a legislative power. (People v. Hunt (1999) 74
Cal.App.4th 939, 945-946.) “In construing this, or any, statute, our office is simply to
ascertain and declare what the statute contains, not to change its scope by reading into it
language it does not contain or by reading out of it language it does. We may not rewrite
the statute to conform to an assumed intention that does not appear in its language.”
(Vasquez v. State of California (2008) 45 Cal.4th 243, 253.)
“Statutory language is not considered in isolation. Rather, we ‘instead
interpret the statute as a whole, so as to make sense of the entire statutory scheme.’”
(Bonnell v. Medical Board (2003) 31 Cal.4th 1255, 1261.) We must also “interpret
legislative enactments so as to avoid absurd results.” (People v. Torres (2013) 213
Cal.App.4th 1151, 1158.)
B. The Statutory Framework and Language of Section 1170.95
“Murder is the unlawful killing of a human being, or a fetus, with malice
aforethought.” (§ 187, subd. (a).) Though under the felony-murder rule, a defendant can
be convicted of murder without malice if a victim is killed during a designated inherently
dangerous felony. (See CALCRIM No. 540A [“A person may be guilty of felony murder
even if the killing was unintentional, accidental or negligent”].)
Generally, a defendant may be convicted of a crime either as a perpetrator
or as an aider and abettor. (§ 31.) An aider and abettor can be held liable for crimes that
were intentionally aided and abetted (target offenses); an aider and abettor can also be
held liable for any crimes that were not intended but were reasonably foreseeable
(nontarget offenses). (People v. Laster (1997) 52 Cal.App.4th 1450, 1463.) Liability for

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intentional, target offenses is known as “direct” aider and abettor liability; liability for
unintentional, nontarget offenses is known as the ““‘natural and probable consequences”
doctrine.’” (People v. Montes (1999) 74 Cal.App.4th 1050, 1055.)
Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) 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).) As a result, the Legislature amended
sections 188 (defining malice), and 189 (defining the degrees of murder).
The Legislature also added section 1170.95 (Stats. 2018, ch. 1015, § 4, eff.
Jan. 1, 2019), which provides a procedure for aiders and abettors to challenge their
previous murder convictions under prior statutes and legal theories. Section 1170.95
designates: 1) the threshold requirements for relief; 2) the requirements of the petition;
and 3) the procedural requirements.
1. The Threshold Requirements for Relief
“(a) A person convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court that sentenced the
petitioner to have the petitioner’s murder conviction vacated and to be resentenced on
any remaining counts when all of the following conditions apply:
“(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.

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“(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,
subd. (a), italics added.)
2. The Requirements of the Petition
“(b)(1) The petition shall be filed with the court that sentenced the
petitioner and served by the petitioner on the district attorney . . . , and on the attorney
who represented the petitioner in the . . . county where the petitioner was convicted. . . .
The petition shall include all of the following:
“(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 . . . court case number and year of the petitioner’s conviction.
“(C) Whether the petitioner requests the appointment of counsel.
“(2) If any of the information required by this subdivision is missing from
the petition . . . , 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)(1),(2), italics added.)
3. The Procedural Requirements
“(c) 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 the petitioner has requested counsel, the court shall appoint counsel to represent the
petitioner. The prosecutor shall file and serve a response within 60 days . . . and the
petitioner may file and serve a reply within 30 days after the prosecutor response is
served. . . . If the petitioner makes a prima facie showing that he or she is entitled to
relief, the court shall issue an order to show cause.

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“(d)(1) Within 60 days after the order to show cause has issued, the court
shall hold a hearing to determine whether to vacate the murder conviction and to recall
the sentence and resentence the petitioner . . . , provided that the new sentence, if any, is
not greater than the initial sentence. . . .
“(2) The parties may waive a resentencing hearing and stipulate that the
petitioner is eligible to have his or her murder conviction vacated and for resentencing.
If there was a prior finding by a court or jury that the petitioner did not act with reckless
indifference to human life or was not a major participant in the felony, the court shall
vacate the petitioner’s conviction and resentence the petitioner.
“(3) At the hearing to determine whether the petitioner is entitled to relief,
the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that
the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden
of proof, . . . the conviction, shall be vacated and the petitioner shall be resentenced on
the remaining charges.” (§ 1170.95, subds. (c) & (d).)
C. Analysis
Bautista argues: “Because of statutory violations, the . . . order denying re-
sentencing should be reversed, and the matter should be remanded to the trial court with
directions to appoint counsel . . . to allow . . . counsel to file any amended petition[,] . . .
to allow the prosecutor to file a statutorily-mandated response . . . and to allow appointed
counsel to file any reply . . . before the trial court may determine whether [he] has made a
‘prima facie showing’ that he ‘falls within the provisions’ of . . . section 1170.95.”
(Boldfacing and capitalization omitted, italics added.) We disagree.
Under the statute, “[a] person convicted of felony murder or murder under a
natural and probable consequences theory may file a petition with the court . . . .”
(§ 1170.95, subd. (a), italics added.) Within the section 1170.95 petition, the petitioner
may further request the appointment of counsel. (§ 1170.95, subd. (b)(1)(C).) But once a

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petitioner has filed a section 1170.95 petition—whether the petition includes a request for
counsel or not—the statute 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 . . . .” (§ 1170.95, subd. (c), italics added.) Thus, a trial court is not first
required to appoint counsel for the petitioner before reviewing the petitioner’s section
1170.95 petition and making the threshold prima facie determination as to whether the
petitioner falls within the provisions of the statute.
Further, the Legislature must have intended that when a person files a
section 1170.95 petition, the court may look beyond the four corners of the petition—to
the underlying case and the record of conviction—in order to determine whether the
petitioner actually falls within the provisions of the statute. (See Meyer v. Glenmoor
Homes, Inc. (1966) 246 Cal.App.2d 242, 251 [“‘Prima facie evidence is that which
suffices for the proof of a particular fact, until contradicted and overcome by other
evidence’”]; see also In re Estate of Woodson (1939) 36 Cal.App.2d 77, 80 [“Prima facie
evidence is not conclusive evidence; it simply denotes that the evidence may suffice as
proof of a fact until or unless contradicted and overcome by other evidence”].)
In sum, we find that the Legislature intended trial courts to implement the
procedural provisions of section 1170.95 exactly as the court did in this case. That is, the
court reviewed Bautista’s petition, compared it to Bautista’s underlying case, and
determined that he was not actually a person that had been convicted of murder, as
Bautista had claimed in his section 1170.95 petition.
Bautista’s proposed interpretation of section 1170.95—that the court must
appoint an attorney for every person that asks for one (and prior to making the prima
facie determination)—would violate the statutory framework and would lead to absurd
results. For instance, suppose a person convicted of making criminal threats (§ 422) filed
a section 1170.95 petition and asked for an attorney. Under the plain meaning of the
statute, the court would simply need to review its records in order to summarily deny the

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petition. But according to Bautista’s proposed interpretation of the statute, the court
would first need to make an unwarranted appointment of counsel before ruling that the
petitioner did not make a prima facie showing. The Legislature could not have intended
such an absurd waste of time and resources. Thus, the trial court did not commit error by
making its prima facie determination without first appointing Bautista counsel.
Bautista argues that: “Any appointed counsel could only effectively assist
a petitioner like [him] if the appointment occurred before the final form of the re-
sentencing petition were settled and before the petitioner’s ‘prima facie showing’ were
considered and determined by the trial court.” We disagree.
Section 1170.95 requires that a petitioner file a declaration, which includes
only minimal information: the basis for relief under the statute (a conviction for murder
as an aider and abettor), and the year and number of the underlying case. (See § 1170.95,
subd. (b)(1)(A), (B).) This information would presumably be known to the petitioner and
is otherwise readily available; a petitioner would ordinarily not require the assistance of
counsel in order to meet these basic requirements. Further, there are procedural
protections built into the statutory scheme. That is, if a petitioner fails to include the
required information, the court can deny the petition without prejudice, and “advise the
petitioner that the matter cannot be considered without the missing information.”
(§ 1170.95, subd. (b)(2).)
Moreover, if a trial court ultimately denies the section 1170.95 petition, an
unsuccessful petitioner can further pursue the procedural protections of appellate review,
as Bautista did in this case. (See § 1237, subd. (b) [a defendant has the right to appeal
“any order made after judgment, affecting the substantial rights of the party”].)

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III
DISPOSITION
The trial court’s order denying the section 1170.95 petition is affirmed.
MOORE, ACTING P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.

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